
    Edwards and others, Respondents, vs. The Agricultural Insurance Company of Watertown, New York, Garnishee, Appellant.
    
      October 4
    
      October 23, 1894.
    
    
      Insurance against fire: Interpretation ofpoliey: MistaTie: Garnishment.
    One A. worked by the day in the erection of a house, and S. & M. furnished lumber therefor. Both wishing insurance, A. took out a policy in his own name for an amount sufficient to cover the claims of both. He intended it to cover both claims, and S. & M. paid one half of the premium. When it was discovered that it did not cover the claim of the latter, there was indorsed on the policy, with A.’s consent: “Loss, if any, under this policy, payable to S. & M. as their interest may appear.” The building was afterwards destroyed by fire. In garnishment proceedings against the insurance company by creditor’s of A., it is held that the policy insured only the interest of A., and that the amount of his loss was payable to 8. & M..to the extent of their interest.
    APPEAL from the Circuit Court for lioele, County.
    The principal defendant, John Arquette, did work and labor, and rendered other services, in and about the erection of a dwelling house for one Mary Mulhall, at day wages. Schaller & McKey furnished lumber to Mrs. Mul-lí all for the building. There became due to Arquette, for wages, $347.70. There became due to Schaller ds McKey, for lumber, $350.77. Both parties wished insurance on the building to secure their claims. For this purpose Arquette procured a policy in his own name for $700, which was enough to cover both claims, -lie intended it to include both claims. When it was discovered that it did not cover the claim of Schaller ds McKey, with the consent of Ar-quette there was indorsed upon the policjr this direction: “Loss, if any, under this policy, payable to Schaller dr McKey as their interest may appear.” In this form the policy was issued to Arquette. Schaller ds McKey paid one half of the premium. The building was afterwards destroyed by fire. All proceedings necessary to fix the liability of the company were taken. Then the several plaintiffs began their several separate actions against Arquette, and garnished the insurance company.
    The action was tried before the court without a jiuw:' The court, in effect, found that the insurance company -was liable on the policy of insurance to Arquette for $347.70, and to Schaller ds McKey for $350.77, and gave judgment for Schaller ds McKey for $350.77, and for the several plaintiffs to the aggregate of $347.70, against the insurance company, as garnishee of Arquette. From this judgment the insurance company appeals.
    For the appellant there was a brief by Dmvwiddie, Goldin ds Wheeler, and oral argument by B. F. Dnmoiddie.
    
    For the respondents there was a brief by Sutherland de Nolan, attorneys for Edwards, and John Gunningham, attorney for O'Brien and Dotoning, and a separate brief by M. P. Pichardson, attorney for Schaller ds McKey (who were interpleaded as defendants by order of the court on their petition); and the cause was argued orally by G. G. Sutherland, Mr. Gunningham, and Mr. Richardson.
    
   Newman, J.

It was conceded on the argument that both Arquette and Schaller db Mg Key had insurable interests in the building' of Mrs. Mulhali. This could scarcely be questioned, at least since the decision of Horsch v. Dwelling House Ins. Co. 77 Wis. 4.

It seems .clear that the policy of insurance was not written in. accordance with the wishes or intention of Arquette. Rut it was received by him with full knowledge of the form of its writing; and the indorsement making the loss, .if any, payable to Schaller & McKey wms made under his direction. The policy must be held to embody the agreement of the parties.

This is an action at law upon the contract itself. The court was not asked to reform it on the ground of mistake or otherwise. Perhaps it could not be reformed in this action, even if it were shown to be a proper case for reformation in a proper action for that purpose. So the recovery must be according to the terms of the contract itself. The contract, by its terms, insures only the interest of Arquette. The amount of his loss alone is recoverable upon it. By his appointment, made at the time of making the contract, this loss is payable to Schaller <Jk Mo-Key as their interest may appear. Their interest is larger than Arquette’s loss. 'There is nothing coming to Arquette after satisfying Schaller db McKexfs interest. There is nothing due to him from the garnishee,— nothing to be garnished. Schuller & MoKey should recover from the insurance company the amount of Arquette’s loss. Judgment should be for the insurance company in all the garnishment actions.

By the Court.— The judgment of the circuit court is reversed, and the cause is remanded with direction to enter judgment in accordance with this opinion.  