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necessarily mean by the very persons who made the entries or who had personal knowledge of the facts independent of the books; these elements may affect the weight of the evidence but not its admissibility.”

1. Levine v. Lancashire Ins. Co., 66 Minn. 138, 68 N. W. Rep. 855, 26 Ins. L. J. 36; American Ins. Co. v. First Nat. Bank (Tex.), 30 S. W. Rep. 384.

2. Dohman Co. v. Niagara Ins. Co., 96 Wis. 38, 71 N. W. Rep. 69, 27 Ins. L. J. 357.

RULE 25.

Property in Bonded Warehouse. Where whisky is insured in a bonded warehouse, and is destroyed by fire, before payment of the tax due the United States Government, and under the statute the destruction of the whisky does not release the insured from his liability for the tax due, the insurance company is liable for the value of the whisky, including such tax;' and so the actual value of imported goods, including unpaid duty, may be claimed and recovered.?

1. Queen Ins. Co. v. McCoin, 105 Ky. 806, 49 S. W. Rep. 800; Hedger v. Union Ins. Co., 17 Fed. Rep. 498.

2. Wolfe v. Howard Ins. Co., 1 Sandf. 124, affd., 7 N. Y. 583.

RULE 26.

Efficiency of Machines Destroyed not Affected by Those not


The value of other machines not destroyed cannot be claimed by the insurance company to show the inefficiency of similar machines destroyed by the fire.

Stockton Combined H. & A. Works v. Glens Falls Ins. Co., 121 Cal. 167, 53 Pac. Rep. 565, 27 Ins. L. J. 983.

RULE 27.

Property Having uo

Evidence of Value as Limited by Time

Market Value.

While evidence of value must usually be confined to the time of the fire, or reasonably near to it, and specially so where the property consists of perishable articles, or goods having market values subject to fluctuation, there is much property that has no settled market value subject to quotation. Where there is no market value to such property, as for instance, furniture, machinery, wagons, counters, shelving, prescription cases, or other fixtures of a store, it is proper to take as a basis the condition and value some time prior to the fire, if coupled with proof that there has been no deterioration or depreciation.

Johnston v. Farmers' Ins. Co., 106 Mich. 96, 64 N. W. Rep. 5.

RULE 28.

Machine Destroyed Obtainable from Patentee and Only One


Where a machine destroyed by a fire can be obtained only from a patentee and sole manufacturer, the assured may claim its full value at time of the loss, based on the price which would have to be paid for a new machine, that being the only price at which it could be replaced.

Post Printing Co. v. Insurance Co. of N. A., 189 Pa. St. 300, 42 Atl. Rep. 192. And see Commonwealth Ins. Co. v. Sennett, 37 Pa. St. 205.

RULE 29.

Patterns Have no Market Value.

The patterns of a foundry or machine shop have no market value. Their value depends upon their condition, the use to which they can be put, and whether the machines for which they are made are in common use, or whether they are what is known as “dead” patterns.

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Michels v. Western Underwriters' Assoc., N. W. Rep. 56.

RULE 30.

Loss Payable to Third Party.

When policy insures one party, with loss payable to a third party as interest may appear, the claim as against the insurance company is limited to the loss suffered by the party insured. It is his loss which is made payable to the third party and the amount cannot exceed such loss.

Edwards v. Agricultural Ins. Co., 88 Wis. 450, 60 N. W. Rep. 782, 24 Ins. L. J. 290. And see “Parties;” “Mortgagor and Mortgagee.”

RULE 31.

Insurance of Tenant.


Where a tenant is insured against loss in payment of rent while the building is untenantable on account of fire, his claim to such insurance is not affected or reduced by the fact that the landlord collects insurance held by him against loss of rent, and which is credited or applied by him on account of such rent.

Heller v. Royal Ins. Co., 177 Pa. St. 262, 35 Atl. Rep. 726.

RULE 32.

Reinsurance Payable Pro Rata. When a reinsurance policy provides that loss if any shall be “ payable pro rata” it limits the liability of the company issuing it to such a proportion of the actual loss as is in the ratio of the amount of reinsurance to the amount originally insured, so that if the reinsurance policy is for only half of the original insurance, the company is liable for only one-half the loss;' and the word “risk” in a reinsurance contract is construed to apply to the amount insured, and not to an amount as fixed after loss by adjustment.?

1. Home Ins. Co. v. Continental Ins. Co., 62 App. Div. 63, 70 N. Y. Supp. 824.

2. Continental Ins. Co. v. Ætna Ins. Co., 138 N. Y. 16, 33 N. E. Rep. 724, 22 Ins. L. J. 501.


Cost of Building not Proper Measure of Damage. The cost of a building is not the proper measure of damage for its destruction by fire;1 but the original cost, and cost of like building, with difference in value between the house burned and the new one by reason of age and use, may be proper elements or subjects of inquiry, in arriving at value at time of the fire;- so the price of lumber and shingles, etc., at date of fire may properly be considered as an element but is not conclusive. Knowledge of company, acquired through its soliciting agent in examining the building insured, and taking application for a certain amount may be an element in the evidence.

1. Hilton v. Phenix Assur. Co., 92 Me. 272, 42 Atl. Rep. 412; Springfield F. & M. Ins. Co. v. Payne, 57 Kans. 291, 46

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Pac. Rep. 315, 26 Ins. L. J. 46; Brinley v. National Ins. Co., 11 Metc. (Mass.) 195; Waynesboro Ins. Co. v. Creaton, 98 Pa. St. 451; Guinn v. Phenix Ins. Co., 80 Iowa, 346; City De Soto v. American Guardian Ins. Co. (Mo. App.), 74 S. W. Rep. 1.

2. Holter Lumber Co. v. Firemen's Fund Ins. Co., 18 Mont. 282, 45 Pac. Rep. 207, 26 Ins. L. J. 10; Scott v. Security Ins. Co., 98 Iowa, 67, 66 N. W. Rep. 1054, 25 Ins. L. J. 581; Ætna Ins. Co. v. Johnson, 74 Ky. 587; State Ins. Co. v. Taylor, 14 Colo. 499, 24 Pac. Rep. 333; Steinzel v. Pennsylvania Ins. Co., 110 La. 1019, 35 So. Rep. 271. And see Woodruff v. Imperial Ins. Co., 83 N. Y. 133.

3. Cummins v. German-American Ins. Co., 192 Pa. St. 359, 43 Atl. Rep. 1016.

4. Scott v. Security Ins. Co., 98 Iowa, 67, 66 N. W. Rep. 1054, 25 Ins. L. J. 581.

RULE 34.

When Insurable Interest Insured Extends to Whole Value of

Building. When the insurable interest of the assured insured extends to the whole value of the building or property and the insurance company undertakes to insure the assured against loss by fire, not exceeding the sum specified to the “ described property," the loss or damage to be ascertained “ according to the actual cash value of the property at the time of the fire,' this contract makes the value of the property within the limit the measure of the company's liability. The fact that improvements may have cost the owner nothing, or that if destroyed by fire he may compel another person to replace without expense to him, or that he may recoup his loss by a resort to a contract liability of a third person, in no way affects the liability of the insurance company, in the absence of any exemption in the policy.

Foley v. Manufacturers & Builders' Ins. Co., 152 N. Y. 131, 46 N. E. Rep. 318, 26 Ins. L. J. 598; Clover v. Greenwich Ins. Co., 101 N. Y. 277; Foley v. Farragut Ins. Co., 71 Hun, 369, 24 N. Y. Supp. 1131; Tiemann v. Citizens' Ins. Co., 76 App. Div. 5, 78 N. Y. Supp. 620; St. Clara Female Academy v. Northwestern National Ins. Co., 98 Wis. 257, 73 N. W. Rep. 767. And see Merrett v. Farmers' Ins. Co., 42 Iowa, 11; Grant v. Elliot Ins. Co., 76 Mc. 514; Boston & Salem Ice Co. v. Royal

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