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State v. Stanley.

by the difference between the public agency in appointing, and that exercised in discharging the duties of a clerk. By the law the judges of the superior courts, and the justices of the county courts were authorized to appoint the clerks of their respective courts; that power is an office in the extended sense of that word, which originally signifies duty generally, but it is not a lucrative or valuable office; it was a duty to be performed exclusively for the public convenience, and with reference to it alone, without any benefit immediate or remote to the judges or justices as individuals. "The courts in this respect are not exercising a judicial function, not serving for emoluments, but were mere ministers of the law, and naked agents of the body politic, to effect an end purely public." "But when the country has through those agents appointed a clerk, though he is also a servant of the public, yet he is something more than a naked, uninterested political agent."

2. Another ground was taken for the defendants: It is the one on which his honor in the court below put his opinion. By the act of 24th of March, 1870, the governor is authorized to appoint proxies and directors for the State in corporations in which the State was a stockholder, prior to the adoption of the present constitution. This act was assented to, as an amendment of the charter by the corporators of the Atlantic and N. C. Railroad Company, at a general meeting in June, 1870; and it is insisted that the act of April, 1871, which authorizes the president of the senate and the speaker of the house of representatives, to appoint proxies and directors for the State, in all corporations in which the State is a stockholder, and repeals all laws in conflict therewith, and forbids the governor to make such appointments, is unconstitutional in this: It violates the charter of the company, and varies the contract without the assent of the corporators. Reply: It may be the company has a right to complain of this change in the charter, but it is an act of the State, and, as both the defendants and the plaintiffs profess to be acting under the authority of the State, neither can be heard to make the objection. Rejoinder: The defendant's title is not involved; the title of the relators is alone in question; and they cannot make good a title under an act which involves the charter of the company. Surrejoinder: By article 8, section 1 of the constitution: "corporations may be formed under general laws," etc.;-"all general laws and special acts passed pursuant to this section may be altered from time to time, or repealed; "true. this

Bobbitt v. The Liverpool and London and Globe Insurance Co.

does not apply to corporations chartered before the adoption of the constitution, but the Atlantic and North Carolina Railroad Company by accepting the amendment of their charter by act of March, 1870, placed itself, in that respect, upon the footing of a corporation chartered after the adoption of the constitution; and the power of the general assembly to alter the charter from time to time, or to repeal the amendments, attaches to this corporation.

This is an interesting question, into which we will not enter, as its determination is not necessary for the purpose of our decision, and in regard to it, the corporation has not been heard.

The judgment of the court below is affirmed with costs.

BOBBITT V. THE LIVERPOOL AND LONDON AND GLOBE INSURANOH COMPANY, appellant.

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A policy of fire insurance was indorsed with the following condition: "The basis of this contract is the application of the insured, and if such applica tion does not truly describe the property this policy shall be null and void." The application concluded as follows: "And the said applicant hereby covenants and agrees . . . that, the foregoing is a just, full and true exposition of ... the condition, situation and risk of the property to be insured, so far as the same are known to the applicant and are material to the risk." In an action on the policy, held, that the application was a part of the contract, and in the nature of a warranty or condition precedent; also, that it was necessary for the plaintiff to set out the application in his complaint, and aver and prove the observance of the warranty or condition.

A representation in an application for a policy of fire insurance need not be both fraudulent and false to vitiate the insurance; it is sufficient that the representation be false.

ACTION on a policy of fire insurance issued by defendant to and in the name of one Newman, the agent of plaintiff, upon a quantity of tobacco. The opinion states the facts. Verdict and judgment for plaintiff. Defendant appealed.

Bobbitt v. The Liverpool and London and Globe Insurance Co.

Lamier, for appellant.

Phillips & Merriman, W. A. Graham, Moore & Gatling, and L C. Edwards, for appellee.

READE, J. The plaintiff made a written application to the defendant to insure his property, in which application he undertook to describe the property, its character, quantity, value and situation. In consequence of that application, and the payment of $500, the defendant agreed to insure the property for twelve months against fire, or to pay $20,000, if the property should be burned, if the loss should be so much, or else as much as the loss should be, and gave the plaintiff a policy to that effect.

The application was a printed form, furnished by the defendant, with questions to be answered, and with blanks for the answers, and the blanks were filled up in writing by the plaintiff and signed by him. There was a printed heading to the application, setting forth that, "the estimated value of personal property, and of each building to be insured, and the sum to be insured on each must be stated separately. When personal property is situated in two or more buildings, the value and amount to be insured in each must be stated separately, three-fourths only of the value to be insured," etc. The application described the property insured as "raw and manufactured tobacco, in a two-story frame building," etc. And in answer to question eight, of the form, "what is the present cash value of the property on which insurance is wanted ?" the response is, "the present cash value of the tobacco on hand is $30,000, and it will be increased to $50,000, the average value on hand say $30,000." And the application concludes, in print, as follows: "And the said applicant hereby covenants and agrees to, and with said company; that the foregoing is a just, full and true exposition of all the circumstances with regard to the condition, situation, value and rish of the property to be insured, so far as the same are known to the applicant and are material to the risk.”

Upon that application the defendant issued to the plaintiff a $20,000 policy, in which it is expressed to be "subject to the conditions and stipulations indorsed on the back of the policy, which constitute the basis of this insurance."

One of the aforesaid conditions and stipulations on the back of the policy is as follows:

Bobbitt v. The Liverpool and London and Globe Insurance Co.

"1. That the basis of this contract is the application of the insured, and if such application does not truly describe the property this policy shall be null and void."

The first question for our consideration is, what is the nature and effect of that application? Is it a part of the contract, and in the nature of a warranty or condition precedent that the property was as described, or is it a representation preliminary to and outside of the contract?

It may be premised that insurance contracts are in general subject to the same rules of construction as other contracts. And it is a familiar rule that where there are several separate writings, all about the same matter, between the same parties, referring to each other, and all necessary to complete the whole, they are all to be read together as if they were all one. Apply that rule to the case before us. The application asks for the policy and describes the property, and covenants for the verity of the description. The policy is issued as asked for in the application, and refers to another writing on the back of the policy for the "conditions and stipulations subject to which it is issued." And that writing refers back to the application, upon the verity of which the policy is to be valid or null and void. Take away either of these writings, and the contract would be incomplete, and the rights of the parties could not be declared. Read them together, and the contract amounts to this:

The plaintiff proposed to the defendant to insure him $20,000 on property, the "present cash value of which was $30,000," and to continue on an average about that value for twelve months, and that the property was at that time and would continue to be in a certain two-story framed building, which was described. And the defendant agreed that if the plaintiff would give him $500 he would make the insurance, and would pay him $20,000 in case of fire, if he should lose so much, or such less sum as the loss might be; with the understanding that the property was as described, and should continue so to be, else he was to pay nothing at all.

This view of the case will be found to be abundantly supported by Parsons on Contracts, Parsons on Marine Insurance, and Archbold's Nisi Prius, title "Insurance," and by the adjudged cases cited by them. It is sufficient to quote the following from Archbold:

"Modern policies of insurance usually contain a number of conditions, stipulations, warranties, etc., either in the body of the instru

Bobbitt v. The Liverpool and London and Globe Insurance Co.

ment, or indorsed upon it. Frequently the policy refers to certain printed proposals of the company, as containing the terms of the contract, and in such cases such printed proposals must be deemed a part of the policy, even although they be without stamp, or seal, or signature."

The application being, therefore, a part of the contract, an important inquiry was, whether the property was correctly described in the application. And the first question is, upon whom was the burden of proof? The burden of proof is upon the plaintiff. It would be otherwise if the application were not a part of the contract, but was a mere representation.

Being a part of the contract, it was necessary for the plaintiff to set it out in his complaint; and it being in the nature of a warranty or condition precedent, it was necessary that the plaintiff should prove it. Archbold says: "Where conditions are indorsed upon the policy, or contained in certain proposals referred to in the policy, they must be set out in the declaration, and there must be an averment showing that the plaintiff has observed them. And where a compliance with them is in the nature of a condition precedent to the plaintiff's right to recover, a strict compliance must be observed." And again: "If an averment of compliance with any of the conditions indorsed on the policy, or contained in any of the proposals of the company referred to in the policy, be traversed, then, if the traverse be in the negative, the plaintiff must prove the averment; but if the averment be in the negative and the traverse be in the affirmative, the defendant must prove his traverse. And if any of these be a condition precedent to the plaintiff's right to recover, the compliance with it must be strictly averred, and as strictly proved."

The complaint in this case, article 6, does aver that the plaintiff had "fulfilled all the conditions of the insurance," but it does not set out the conditions embraced in the application, under the idea, we suppose, that they were not a part of the contract. This defect may be remedied by an amendment at the discretion of the judge below, when the case goes back if the plaintiff choose to move. The defendant's traverse is also general. But considering the complaint to contain all the necessary averments, and the defendant's traverse to be in the negative-which is the most favorable view for the plaintiff, because as we have seen it is necessary that the complaint should contain them then the burden of proof is upon the plaintiff; and he must show that the cash value of the property at the time of the VOL. VIII.-63

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