
    Carpenter v. The Mutual Safety Insurance Company.
    Nov. 11 ;
    Dec. 21, 1846
    Equity has jurisdiction to enforce an agreement to insure, and on a hill for that purpose, will compel the execution of a policy, or if a loss have occurred, will decree its payment.
    Demurrer. The hill set forth an agreement for insurance made by the authorized agent of the defendants, the terms of which were fully stated, the payment of the stipulated premium by the complainant to the defendants, and the omission of the latter to execute a policy of insurance conformably to the agreement, on being requested. The bill also stated the loss of the premises insured, and the complainant’s consequent right to recover the amount agreed to be insured. The prayer was for a payment.of the loss and for general relief. The defendants demurred to the bill for want of equity.
    
      Theodore Sedgwick, for the defendants, in support of the demurrer.
    I. The bill in this case waives an answer on oath, and is consequently a naked bill for relief, without any prayer for discovery at all. (7 Cranch, 69 ; 2 Paige, 599.)
    II. It shows no case whatever for the jurisdiction of this court. It is an effort to obtain the specific performance of a promise to give a policy of insurance, and is bad, as well because it seeks to compel performance of a contract relating merely to personal property, as because there is a plain and simple remedy at law. (Carter v. Hardy, Park on Ins. 4; 2 Story’s Eq. Jur. ch. 18; 6 John. Ch. R. 485.)
    III. The remedy prayed for, is payment of the loss alleged to have been insured against; and the claim therefore sounds altogether in damages. Inasmuch, therefore, as no discovery is prayed for, as no basis of equitable jurisdiction is alleged, and as there is a plain remedy at law, the bill must be dismissed. (As to the damages, 23 Wend. 25.)
    
      
      W. Curtis Noyes, for the complainants.
    Upon an agreement to insure, the policy not being delivered, it is well settled that a remedy lies by bill in equity to compel its execution ; and this, irrespective of the question whether a loss has occurred or not, and there is no adequate remedy at law.
    1. The agreement is not that the insurance is made, according to the usual terms of the policy; therefore, even after a loss assumpsit would not lie, as the plaintiff must count upon art agreement actually made, not one agreed to be made.
    2. However this may be, the question of jurisdiction is explicitly settled in Perkins v. The Washington Insurance Co, (4 Cowen, 635,) in which it was held that the bill was properly filed, even after a loss had occurred ; and a decree was made-compelling payment of the sum insured. (Hammond on Ins. 128; Per Bronson, J. in Lightbody v. North American Fire Insurance Co. 23 Wend. 25.)
    3. Here, as in this case, this court has jurisdiction by virtue of its general power to compel the specific execution of agreements, and having obtained jurisdiction properly for that purpose, it will retain it for every other, and do complete justice between the parties. (1 Story’s Eq. § 159 to 161, and notes.
    4. This was in effect, a contract to indemnify, and equity has unquestioned jurisdiction in such cases. (2 Story’s Eq. § 850.)
   The Vice-Chancellor.

The circumstance that the bill seeks performance of a contract relating to personal property, is not of itself a valid ground of demurrer. There are many instances in which equity compels a specific performance of such contracts.

The real, serious objection to the bill, is that the complainant has an adequate remedy at law.

I think, however, that it is now the established doctrine, that the insured may, in such a case, resort to a court of equity.

In Perkins v. The Washington Insurance Company, 4 Cowen, 645, our highest court maintained a suit like this in all respects. The defendant there was a corporate body, which answers under its seal and makes no discovery.

It is true that the report of the case does not show any discussion of. the question of jurisdiction in the court below, or that the point was presented. But the severe litigation of the cause, the eminent counsel engaged in it, and the opinion of Senator Golden, furnish strong evidence that the law was deemed to be too well settled, to warrant any debate in regard to it.

That learned judge says, in his opinion, (p. 661,) that the receipt for the premium “ answers all the use of a policy, except that the latter authorizes the assured, in case of loss, to sue in a court of law, instead of being obliged to resort, as in this caseg to a court of chancery.”

The case cited has ever since been regarded as decisive of the jurisdiction in equity. Thus, the now chief justice, in delivering the opinion of the supreme court, in Lightbody v. The North American Fire Insurance Company, (23 Wend. 18, 25,) speaking of a state of facts similar to those in this bill, says “if his remedy at law was questionable,” (and the judge thought he had such a remedy by an action on the case,) “ he had a perfect equitable right to the delivery of the usual policy, which he might have enforced in the proper forum;” citing Perkins v. The Washington Insurance Company.

Mr. Phillips, in his treatise on insurance, cites the same case, and observes that upon the general principles distinguishing the jurisdictions, it belongs to courts of equity, to compel a specific performance of an agreement to make or renew a policy of insurance. (2 Phill. on Ins. 582.)

So Mr. Duer in his recent valuable work on marine insurance, says the acceptance of an application, with the rate and . the time agreed upon in writing and signed, constitutes in equity a valid insurance, and in law a valid agreement to insure ,* and gives to the assured an immediate right to demand from the insurer a corresponding policy on the tender of the premium or the premium note ; and should a loss occur before the execution of the policy, a court of equity would relieve the assured. (1 Duer on Ins. 66; Chapt. 1, § 11.) He adds in note 7, (ibid. 111,) that Perkins v. The Washington Insurance Company, is a direct authority in support of the position in the text, that a court of equity upon a bill for the specific execution of an agreement to insure, may decree a satisfaction.

In Mead v. Davison, 3 Adolph, and Ellis, 303, Lord Denman, speaking of a similar case, said that equity would have compelled the insurer to execute the formal policy, whenever tendered to him.

With these authorities, and I may add, the very general understanding of the profession for a long period that such is the law, I have no doubt as to the jurisdiction in this case. It surely can make no difference in respect of the jurisdiction, that the loss insured against has occurred. The only ground upon which it can be maintained, is for a specific performance by the execution and delivery of a policy. The further relief by decreeing payment, where there has been a loss, is merely incidental, and to avoid expense. Now take the instance of an agreement to insure, where there has been no loss. The right of the assured to receive a policy is perfect and may be enforced immediately, the premium having been paid. An action at law in such a case would be worse than useless to him, for he could recover no more than nominal damages. The value of a policy, previous to a loss, would not be sufficient to carry the costs of a suit at law.

In this respect it is wholly unlike the contract to deliver bills or notes payable at a future day, on a sale of goods. There, on a failure to deliver the bills or notes, an action lies upon the special agreement, in which the damages may be at once ascertained, and full justice done, by giving the price of the goods sold. Here, after a barren recovery at law for the non-delivery of the policy ; if a loss occurred, another suit must be brought for the real damages ; and in the second suit, the assured would probably encounter .a plea setting up the first recovery as a bar to a further prosecution.

It is obvious that a suit at law, before a loss, is an inadequate, if not a fatal mode of redress. And as I have remarked, the principle of the jurisdiction in equity, is the same whether a loss has occurred or not. It therefore cannot be taken away or impaired, if perchance the remedy at law, when first invoked after a loss, may lead to the same results.

The demurrer must be overruled with costs, and the usual order entered.  