
    The Liverpool, London and Globe Insurance Company v. John A. S. Verdier and another.
    
      Insurance: Averaging the loss: Contribution: Other insurance: Forfeited policy. In an action upon a fire insurance policy, issued to a firm, which provides that in case of other insurance the amount recoverable upon it should be no greater proportion of the loss than the amount thereby insured should hear to the whole amount insured thereon “ without reference to the date of the different policies or their invalidity,” etc., it was held that in determining the amount recoverable upon the policy in suit, a policy in another company covering the same property should be treated as liable to contribute, though it had been issued to one of the plaintiffs individually, and was claimed to have been forfeited by change in ownership of the property by reason of the insured having taken in the other plaintiff as a partner, where it had nevertheless after the loss been assigned to other companies, insurers of the same property, upon payment by the latter of their full share of the loss, under an arrangement that they should prosecute the same for their benefit: Campbell, X, dissenting on the ground that the proofs showed such policy not to have been a valid and subsisting policy at the time of the loss.
    
    
      Contribution: Other existing policies: Validity of other insurance. Cooley, Ch. X, with whom Graves, X, concurs, holds the stipulation in the policy, that in adjusting a loss other existing policies should bo taken into account even though forfeited, to be a competent provision and not unreasonable, its purpose being to protect the company against the necessity of contesting with the insured any question of the validity of the other insurance: Marston, X, concurred on the ground that the outstanding policy was issued to one who at the time of the loss had an interest in the goods as a member of the plaintiff firm and that such firm had dealt with it after the loss as a valid, subsisting policy and assigned their claim under it
    
    
      Heard October 18.
    
    
      Decided January 10.
    Error to Kent Circuit.
    
      *This is an action upon a fire insurance policy issued by plaintiff in error to defendants in error on their stock of goods. The policy contained a clause providing that in case of any other insurance on the property, prior or subsequent, the assured should be entitled to recover of this company no greater proportion of the loss sustained than the sum thereby insured should bear to the whole amount insured thereon, “ without reference to the date of the different policies, or their invalidity from want of notice of this or other insurance, or from the violation of any of their conditions, or the insolvency of any or all the other insurance companies.” The loss was a partial one and amounted to six thousand eight hundred and eighteen dollars and twenty cents. There were two other policies about which there was no dispute. The real controversy relates to the question whether a policy in the Home Insurance Company should be treated as liable to contribute to the loss, in determining the amount for which plaintiff in error is liable under its policy. A tender was made of the amount for which plaintiff in error would be liable upon the basis of the Home policy contributing its proportion, which was refused, and this suit was thereupon brought. Verdier had before been in business alone and had taken out the Home policy in his own name. It was dated May 1, 1873, and ran one year from that date. May 4, 1874, Verdier and Brown entered into copartnership, joining their two stocks, under an arrangement that all policies should be assigned to the firm. Other policies were assigned accordingly, but the agents of the Home company not being found, this policy Avas not transferred to the firm. It was renewed May 1, 1874, as it stood, in Verdier’s name. The premium was not paid until the day after the fire, which occurred June 4, 1874, but it was retained by the company and never returned. The policy in suit was issued to the firm on May 28, 1874. After the fire, adjusters came together from all the companies, including the Home, but the latter company refused to pay, on the ground that its policy became forfeited by the change *in title of the property. On payment by the other companies on the basis of the Home policy not contributing, defendants in error assigned said Home policy to one of them, in trust for the whole, under an agreement that they should prosecute that company to make it contribute its share, and that the amount recovered should be divided among them proportionately, according to the amount each had paid towards the loss. The court below held plaintiff in error liable to pay without any deduction on account of the Home policy, and the company brought error.
    
      Hughes, O’Brien & Smiley, for plaintiff in error.
    
      Norris <& Uhl, for defendants in error.
    
      
       A-n insurance policy may be taken jointly to secure property owned in severalty: Caslner v. Farmers' Mut. F. Ins. Co., 46 Mich., 15. Where an insurance company bas ceased to do business, it is not liable on a policy which persons who ceased to be its agents promised to renew. But if the promisee did not know of the revocation of authority, he may perhaps have a cause for action. Where in the declaration the allegation does not show written renewal, a plea of general issue will suffice: Montross v. Roger Williams Ins. Co,, 49 Mich., 477. Forfeiture of insurance cannot be declared nunc pro tunc after the loss, if the policy was in force when loss took place: Olmsteadv. Faimers' Ins. Co., 50 id., 200. Apartnership in whose name the policy was issued was dissolved before the fire, and the retiring partner’s interest transferred to his co-partner, who continued the business, and the company paid a dividend to him after such transfer: Held, that such payment constituted a waiver of any objection on the ground of change of ownership: Combs v. Shrewsbury Mut. Fire Ins. Co., 34 N. J. E., 403. See post, Farmers' Mut. Ins. Co. v. Fogelman, 481, and note.
    
    
      
       A mortgagee is one of the insured, where by the terms of the policy the loss is payable to a person therein named as mortgagee, “as his interest may appear:” Van Burén v. St. Joseph Co. Village Fire Ins. Co., 28 Mich., 397, (Annotated Ed.), note 2. The acceptance of past due assessments by a mutual benefit insurance company after knowledge of loss estops thecompany from refusing payment: Farmers' Mutual Fire Ins. Co. v. Bowen, 40 Mich., 147. The defendant company’s agent joined with, other companies in adjustment, and promised to pay his company’s portion; and plaintiff thereupon settled with the other companies-upon the basis of adjustment: Held, that defendant was estopped from denying its liability: Fislibeeh v. Phcenix Ins. Co., 54 Cal., 422.
    
   Cooley, Ch. J.:

The facts in this case are stated with sufficient fullness in the opinion delivered when it was before us on a former occasion, and reported in 33 Mich., 138. The case has again been tried with the same result as before, and the question now is, whether any new showing was made on the second trial which will require a different conclusion.

The only new fact which appears to me of importance is, that the renewal policy issued by the Home Insurance Company, was actually issued before the transfer of the property covered by it to the firm of Verdier and Brown, though the premium for it was paid afterwards. But by the former record it appeared that the renewal bore date before the transfer, and no question was made of its having been issued at the time it bore date. The presumption would be that such was the fact. In this particular, therefore, I cannot perceive that the case is changed.

I do not think we are at liberty to go into the question whether the Home Insurance Company waived the forfeiture which might have been insisted upon after the transfer of the Home policy by Verdier to Verdier and Brown, or whether *the Home Company treated its policy as a subsisting one, by joining in the adjustment. The fact is undeniable that Verdier and Brown, after the fire, dealt with the claim against the Horae Company as a valid claim, and sold it as such; and this sale might complicate and perhaps defeat the right of the plaintiff in error to be subrogated to the original rights,- — -if any existed, — of Yerdier and Brown against the Home Company, in case the plaintiff in error was compelled to pay, without any deduction on account of the policy issued by the Home. But the actual liability of the .last named company appears to be immaterial. The plaintiff in error required the insured to stipulate in their policy that in adjusting a loss other existing policies should be taken into the account, even though forfeited; the plain purpose being to protect the company against the necessity of contesting with the insured any question of the validity or invalidity of other existing policies. This was a competent provision, and not unreasonable.

The judgment, I think, should be reversed, with costs, and a new trial ordered.

Graves, J., concurred.

Marston, J.:

I concur in the above opinion, upon the ground that the policy in the Home Company was issued to Yerdier, who at the time of the loss had an interest in the goods as a member of the firm of Yerdier and Brown; and because the firm, after the loss, claimed the policy in the Home Company was a valid, subsisting one, and assigned their claim under it, which would have the effect stated in the foregoing opinion. While the clause relied upon in defense, in my opinion, can have no application where the insured has no interest in the goods at the time the owners obtain a new policy and when the loss happens, yet in a case like the present I think it does.

*Campbell, J.:

When this case was last before us, there was evidence in the record from which it seemed probable that the Home Insurance Company had become estopped from questioning the validity of the policy held by Verdier before his partnership with Brown. The terms of the policy prohibiting any change in the ownership of the insured property, are now in evidence, showing that by the formation of the partnership agreement the policy was terminated, unless afterwards revived. The evidence now shows that the renewal took place before the partnership, and that the firm of Sinclair Bros, allowed the. amount to fun until paid after the fire to their clerk in their behalf. But, inasmuch as the whole premium was due in advance, and the insured could not claim any portion of it hack after a voluntary relinquishment of the policy, the subsequent retention by the Home Company or their agents of money which in any event belonged to them, was rightful, and had no effect in renewing a void policy.

There is no testimony in the present record showing any other action of the Home Company in the matter; and therefore there is nothing to indicate any waiver or estoppel against, them. This being so, all other questions which might he presented under the rulings are unimportant, as the valid existence of the Home policy is the only ground on which the judgment could be disturbed, and I am of opinion it should be affirmed.

Judgment reversed, with costs, and a new trial ordered.  