
    
      William Neve vs. The Columbia Insurance Company.
    
    Where a party obtained from two different Insurance Companies, a policy of insurance, for the same stock of goods; and by one policy, (to wit,) the one obtained from the defendants, it was expressly stipulated, “that in case the buildings or goods herein mentioned, have been already, or shall be hereafter insured by any policy issued from this office, or by any agent for this office, or by any other Insurance Company, or by any private insurers, such other insurance must be made known to this office, and mentioned in or indorsed on this policy, otherwise, this policy to be void.” Held, first, that the question, of whether the stock of goods described in this policy was the same as those described and covered by the policy in the Charleston Insurance Company, was a question properly for Hie jury, and their finding will not be disturbed.
    Secondly, It was held, that the policy of Insurance, obtained from the defendants, was void, by the terms of the policy. It having been obtained by fraud and misrepresentation.
    
      Tried before his Honor, Judge Butler, January Term, 1842, at Charleston, whose report of the facts are as folloios.
    
    This was an action upon a policy of insurance for $2,000, effected by the plaintiff, at the office of Mr. Alexander Robinson, agent for the defendants, on the 1st January, 1840, on “a stock of Groceries, Liquors and Wines, (fee., contained in the two story wooden building,” (fee. The premises were destroyed by fire, on the night of 27th April, 1840, and the next day the claim of the plaintiff was made, in which his whole loss was set down as $6,500, upon his stock in the store. In the policy of insurance is contained a special clause, guarding against a double policy; and the defendants objected to the plaintiff's recovery, upon the ground that this clause had been violated; and secondly, upon the ground, that the plaintiff had fired his own premises. It was admitted in the progress of the trial, that the second ground could not be maintained, so that the case turned entirely upon the first ground.
    It was proved, that in May, 1839, one Kohnke was the proprietor of the stock of groceries, (fee., in the same store, and that he sold them to Neve, the plaintiff, upon an agreement that Neve should pay him $1200 in cash, should confess judgment for the balance, and take out a policy of insurance, and assign the same to Kohnke. Neve therefore made an offer for insurance, at the Charleston Insurance and Trust Company, for $2,500 upon the stock, valued at $3,000, and upon tlie offer made a written entry that the policy was to be assigned to Kohnke. The policy was effected accordingly, and on the face of it was written by the agent of the Company, “ this policy may be assured to C. F. Kohnke.” Mr. Moise acted as the attorney of Kohnke, took the confession of judgment for him, and the policy of insurance was delivered to Kohnke’s agent, and never, at any time, had been in Neve’s possession, or was claimed by him. It was considered as assigned to Kohnke, and when produced at the trial, had an assignment endorsed thereon, written however, since the action was commenced. After the fire, Kohnke’s agent, Mr. Moise, made a claim for payment of this policy, which was refused, upon the grounds stated in my report of that case.
    Mr. Robinson, the agent of the Columbia Insurance Company, proved that Neve applied to him to effect insurance on the stock in November, 1839, that they could not agree, as to the rate of premium, and separated. In January, 1840, Neve again applied, and Robinson asked, if he had stood his own insurer, since they had before conversed. It appeared, that in the offer made in writing to Robinson, and which was in Robinson’s hand-writing, that the stock was originally set down as worth $6,000, which sum was, however, struck out, and without filling up again that column, $3,000 was set down in the next column, as the amount to be insured, and $2,000 in the column in which was placed the amount actually insured. Mr. Robinson stated, that he went round himself to inspect the stock, and considered it worth about $3,000; that he returned to his office, and that he remembers having-asked Neve, whether he had any other insurance upon the property; to which Neve answered in the negative.
    On the other hand, a witness for the plaintiff, (Mr. Rose) swore that he was present at the time, having gone with Neve at his request, and that Neve told Robinson of the insurance made for Kohnke’s benefit, at the Charleston Insurance and Trust Company. This evidence is in writing, and cannot be referred to.
    There was a contrariety of evidence, also, as to the value of the stock. Mr. Neufville, who dealt at Neve’s store, thought his stock worth $4,000. Mr. EstilFproved, that hearing that Neve wished to sell, he brought him a purchaser who wished to buy, and both parties being desirous of trading, he presumes that Neve fairly valued his stock, and that he asked for it $4,500. It was also proved by the production of various bills of parcels, that Neve had purchased from January to April, articles costing about $2200, exclusive of the original stock. The assessment too of the tax collector was produced, assessing the stock as worth $4,000.
    On the part of the defendants was produced Neve’s claim, swearing the stock to be worth $6,500, and the evidence of several witnesses, who merely testified in general as to the value of stocks, without seeming to know anything of this particular stock.
    I charged the jury on the different questions, made in the argument, as follows: The main questions upon which the case turned, were these; did Neve procure a double policy to be effected on the same stock of goods % And 2d, was the last, (the one on which the action is brought) obtained by misrepresentation and fraud 1 Whether the policy under-written by Robinson, was void or not, depended altogether on the character of the one effected in the Charleston office, and the legal rights of the parties under it. It purports to be an assurance on goods to which Neve had exclusively a legal title; Kohnke had no legal interest there at all, nor any special lien. His lien, by confession of judgment, was general, and even contingent, and I thought this was not an insurable interest, and was not embraced at all in the policy. Indeed, I thought Kohnke held the policy as collateral security only. My judgment on this point underwent some change in the argument of the case against the Charleston Company. The modification of my judgment will be seen by reference to my report in that case. This does not, in anywise, however, affect, the result of my decision on the case under consideration. For although Kohnke may have had some interest, it was limited and special, and did not deprive Neve from having a concurrent interest with him in part, and an exclusive interest as to the other part. This will be apparent from this view. Suppose no other policy had been effected, but the one in the Charleston Company. That would have been good against the Company for $2,000; and it would have been good for the benefit of ¡Sieve, enabling him to pay a debt of $1,000, and giving him, besides, for his own use, $1,000 more; it would have been worth to him $2,000. But concede that Kohnke had an interest by assignment in the policy; and he could not have it without an interest, no policy ever being good, without some interest to be protected; still Neve had an exclusive interest, to the amount of $1,000. That was his own insurance to that amount, in which Kohnke had no concern. Was not then the second policy a double insurance, on the same stock of goods 'l I think it was, and so charged the jury.
    The other question noticed, was one of fact, to wit: Was this second policy procured by misrepresentation and fraud 1 Mr. Robinson swore that it was, and gave satisfactory reasons why it was so obtained. • The evidence of the other witness (Rose,) would seem to conflict with Robinson’s statement. If notice of former insurance had been given to Robinson, it was his duty to have noted it in his policy, which was not done; and I am inclined to think that the omission is evidence that he never received such notice. Be that as it may, it was a question that was submitted to the jury.
    Another question was made, but which was also one of fact; that the two policies were on different stocks of goods. The stock insured is described in the same way in both policies. Though some things were sold and others bought, they had reference to the same general stock. The contract of insurance is one of indemnity, for such loss as the assured may suffer by the destruction of goods of a particular description, not for the loss of the particular cask of wine, (fee. which might be in the store at the time; and if it were not so, the assured would be generally the sufferer, for within a year he may have sold the specific articles that were in the store at the time the policy was taken.
    All the questions of fact were submitted to the jury under my views of the law, as above stated. The most important issue of fact was, whether Neve had not fired his own house; upon that issue, much evidence was given, which it is unnecessary to notice here. The jury found a verdict for the defendants, and the plaintiff appealed, on vario us grounds: all of which are resolved into the question, whether the same stock of goods have been twice assured or not.
    Kanhardt, for the motion,
    said, if Neve had a separable interest in the goods assured, from that assured by the Charleston Insurance Company, this policy may be good ; cited 1 J. Cas. 1. Such facts as may increase the risk.or premium must be communicated, otherwise not; 17th Wend. 631, is but a continuation of the case of 9 Wend. 19 Pick, 81. He had the right to insure all, although a part may be assigned and assured elsewhere. The policy to the Columbia Company covers a greater amount of goods, 18 Pick. 523. The assignee might recover all, although a part only was assured for his benefit, 2 Marsh, on Ins. 654. If the second policy were attached, a return of the premium ought to have been made.
    
      H. A. DeSaussure, contra,
    said, the action is upon the contract. The goods are his own, and insured in that policy alone. It declares the consequence of a double assurance ; the policy is to be void. No notice of such as- ' surance makes it void. The fact, that two actions have been brought for the same loss, on the two policies, shews that it is a double assurance. The plain tiff had the legal interest in the goods, when they were assured. He had an interest to pay his judgment to Kohnke and to retain the balance. By the verdict of the jury, he is concluded from examining now the second ground of defence, in relation to misapprehension and fraud. The first ground is irrelevant, because the real issue was, whether the same goods were twice assured; the 2d and 3d are also irrele-Arant. The Judge’s illustrative remarks are no grounds for a new trial.
    
      Memminger, in reply, said, what is a double assurance'? Cited 3 Kent Com. 280. Two insurances on the same risk and same interest, 4 Dali. 351, 12 Mass. 214, 1 Marsh. 146, 152. Kohnke clearly had an insurable interest, 1 Camp. 401, 5 B. and P. 299, 1 lb. 315, 3 Kent, 371. Was the Charleston insurance, an insurance of Kohnke 1 6 Cranch, 274, 12 Mass. 80. Phill. on Ins. 41, 64. A mortgagor may insure a ship and not disclose the mortgagee. It is not necessary to disclose the interest, 2 T. R. 188, 2 Cains 13, note, 2 Wash. 152. A party may divide his interest and insure as he can, Hughes, 91, 92. A broker may insure in his own name, and the parties may recover according to their respective interests. The law will make the parties to a double insurance, contribute rateably. Neve did not own the first insurance, when he was insured the second time. As to the assignment, cited 1 H. B. 239, 7 T. R. 347; contracts by specialty and by parol, 1 N. and M’C. 249 ; bonds may be assigned by parol, 19 J. R. 95; choses in action may be assigned by delivery.
    The policy cannot be assigned, except in equity. The assignment or delivery operates alike. The plaintiff never had the first assurance. Kohnke never could recover beyond his particular interest, 9 E. 702, Phill. on Ins. The assignee after acceptance, may bring the action in his own name, 8 Mass. Rep. 517, 20 Marsh. 800, 17 Wend. 631, rules that after assignment, the party may insure again, without notice of the first. The risk is not the same. There is a limitation in the Charleston policy, not in the Columbia. The conditions are construed strictly.
   Curia, per

Butler, J.

In approaching thé questions in this case, many of the difficulties have been removed by the opinion of the Court, in the case of Neve for Kohnke vs. the Charleston Insurance Company. Whether the stock of goods described in this policy, was the same as that described and covered by the Charleston policy, was a question of fact, properly submitted to the jury, and so far from our being dissatisfied with their finding, we think there was sufficient evidence to have warranted it. At the time the goods were sold to Neve, they were estimated to be worth not more than $2200, and it seems probable at least, that at that time, he had no means of his own to increase the stock, and the profits must have been excessive, if by them he subsequently increased its value to $4000 or $6000. He himself suffered his stock of goods, at two different times, to be valued at $3000, by taking a policy on them, at each time, for $2000. This question of fact being settled by the verdict, we must assume that two different policies have been taken, on the same stock of goods. And the main question in the case now occurs, was the policy on which this action is brought a double policy, and procured to be made without notice or by a suppression of truth, in relation to the first'? Because if so, it is void by the terms of the policy itself, which contains this explicit clause, “In case the buildings or goods herein mentioned, have been already, or shall be hereafter insured by any policy issued from this office, or by any agent for this office, or by any other Insurance Company, or by any private insurer, such other insurance must be made known to this office, and mentioned in or indorsed on this policy, otherwise, this policy to be void” The Charleston policy is not mentioned in or endorsed on this policy ; and I think the evidence was entirely satisfactory, that no notice at all of the former policy was given to the under-writers of this ; otherwise, why was there not a memorandum of it'l Stript of all the extraneous circumstances, the question resolves itself into this. Was Neve the plaintiff, bound to give notice of the first policy 1 In fair dealing and good faith, we think he was. If he had parted with his entire right in the first insurance, by an equitable assignment to Kohnke, he he might possibly have felt himself at liberty to take this policy without notice. I am, however, very far from sanctioning such an idea. He had the exclusive title to the goods insured, and does not occupy the position of a mortgager, who had assigned to his mortgagee a policy taken to secure his interest, and who might have been at liberty to take out another policy to secure his own, to wit, an equity of redemption. Such was the case in 7th and 17th Wendall, referred to in another opinion. There are many good objections to the judgments on this point, in the cases referred to, but I am not called on to review or sanction these decisions. They may well stand on their peculiar facts, whilst the question in the case before the Court, would not be affected by them, for it has been shewn, that at no time had Neve parted with his entire interest in the Charleston policy. He placed it in the possession of his judgment creditor, with only an equitable and limited interest in it. Independent of Kohnke’s lien on the papers, Neve still could have collected the policy, and realized from it $1000. In fact, it was legally his policy, and honesty required that he should have given notice of its existence, before he procured the one on which this action is brought. In addition to the fact of his giving no notice, as required by the policy, he suppressed the truth in relation ■to the former one, for lie said to Mr. Robinson, that there was no other policy on the stock of goods, and that he had stood his own underwriter. If this be true, (of which I have little doubt,) the plaintiff was guilty of a flagitious fraud, which in fact, made his policies worth more than his goods, and if he could have realized the sums called for by them, it was his interest that his goods should have been destroyed, as they were about 3 months after the last policy was taken, and about 20 days before the expiration of the first. Courts should sustain Insurance Companies, in discountenancing double policies, as they weaken the inducement of the assured to take care of their property, and thereby jeopard the security and safety of whole cities. Prudence as well as justice, induces us to sanction the verdict of the jury, which has condemned the bad faith of the plaintiff. Insurance companies run risks, which is the source of their profits, but they are entitled to have good faith observed toward them.

The motion is refused.

We concur. Josiah J. Evans, D. L. Wardlaw.

O’Neall, J. having an interest in the Company, gave no opinion.  