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but block 9 is not mentioned among such blocks and say the evidence does not make it entirely clear that lots. The abstract refers to a deed conveying to ap- the towu was guilty of such negligence in respect to pelled the premises described in the bill, but we can the sidewalk in question, considering its condition at fiud no such deed in the record.

the time of the injury complained of, as would have There is another respect in which either the contract sustained a recovery, even if the plaintiff had been is uncertain, or in which its enforcement might be without fault. While a municipal corporation is reunfair. It is not altogether clear whether the location quired to exercise vigilance in keeping its streets and of the works at Pacific Junction, for which the com- sidewalks in a reasonably safe condition for public mission was to be allowed, was to be a permanent travel, by night as well as by day, it is by no means an location, or a location during the lease. The Maxwell insurer against accidents, nor can it be expected to Company did not buy the building for $10,000, nor maintain the surface of its sidewalks free from all have they built on 200 feet square of ground donated inequalities, and from every possible obstruction to to them by appellee. They did nothing but take a lease more convenient travel. A contrary rule would or for two years. Appellant says the lease entitles him might burden municipal corporations beyoud endurto his commission, while appellee claims, in his answer, ance. That a pavement may have become worn from that the agreement contemplated a permanent loca- use, or that bricks therein may have become loose or cation of the works, and that they are not perma

displaced by the action of the elements, so that pernently located. The testimony of Maxwell shows that sons are liable to stumble, or be otherwise inconthe manufacture of white lead at P: Junction is venienced in passing, does not necessa rily involve the as yet an experiment, and that the question of a per. municipality in liability, so long as the defect can be manent location will not be decided until the lease readily discovered and easily avoided by personslexeronds. Appellee's construction would seem to be the cising due care, or provided the defect be of such a correct one, as the object of the location was to give

pature as not of itself to be dangerous to persons so value to the land, which could not be effected by a using the walk. City of Indianapolis v. Cook, 99 Ind. mere temporary lease. If the commission was to be 10; City of Qaincy v. Barker, 81 Ill. 300; City of Richallowed for a permanent location, then inasmuch as mond v. Courtney, 32 Grat. 792; City of Chicago v. appellant's own evidence proves that a permanent

Bixby, 84 Ill. 82; City of Aurora v. Pulfer, 56 Ill. 270. location there has not yet been accomplished, it would Adopting the language of the court in Hubbard v. be unfair to enforce the contract. Race v. Weston, 86

City of Concord, 35 N. H. 52; 69 Am. Dec. 520, to the
III. 91; Tamm v. Lavalle, 92 id. 263. The decree of the case in hand: Towns are not required to make their
Superior Court is affirmed.

sidewalks perfect, or to correspond with any given
standard. In each case the sidewalk is to be pro-

nounced sufficient or insufficient according as it is or is MUNICIPAL CORPORATIONS-NEGLIGENCE

not reasonably safe and convenient for the travel pass- LOOSE BRICKS IN SIDEWALK -- CON

ing upon it, under the particular circumstances which

exist in connection with that particular case. AcceptTRIBUTORY NEGLIGENCE.

ing as true the evidence most favorable to the plain

tiff below, it appears that some of the bricks in a SUPREME COURT OF INDIANA, OCT. 13, 1887.

pavement had been displaced aud removed, leaving a

depression of from two and a half to six inches in Town OF GOSPORT v. Evans.

depth, covering an area of about three by four feet in The mere fact that bricks in a city pavement have become

the surface of the walk. The authorities had notice loose and displaced by the action of the elements, so that

of the condition of the walk, and bad directed the persons may stumble or be otherwise inconvenienced in owner of the abutting lot to repair the pavement. At passing, does not necessarily make the municipality liable, the time of the injury complained of all the streets so long as the defect is not of itself dangerous, and can

and sidewalks in the town were covered with snow, be readily discovered and easily avoided by persons using

sleet and ice, rendering them difficult and dangerous due care. One having knowledge of a defect in a side- for foot-travellers to pass over. The depression above walk may not recover for an injury therefrom, where he described had become partly, and some of the witwas under no compulsion to walk upon the defective nesses say completely filled with frozeu snow, sleet part, and might easily have avoided all danger by merely

and ice, presenting a surface not substantially differstepping around it.

ent from that around it, except that it was perhaps PPEAL from Circuit Court, Owen county.

somewhat lower. There was evidence tending to show
that some of the bricks which had become loose and

displaced were frozen fast in the snow and ice in and Geo. W. Grubbs, John C. Robinson and I. H. Fowler, about the depression in the pavement, and that some for appellant.

of these projected some inches above the ics surface. Beem & Hickam, for appelleo.

The plaintiff, who was well acquainted with the defect

in the walk, and who had it in mind at the time, while MITCHELL, J. The town of Gosport prosecutes this passing over the place in the night-time, struok her appeal from a judgment rendered by the Owen Circuit

foot against one of the projecting bricks, which caused Court, in favor of Lydia E. Evans, against the appel- her to fall upon the icy pavement. lant, for $1,000, that being the amount awarded the Since therefore it does not appear that the defeotive plaintiff by a jury, in an action for damages for in- condition of the sidewalk occasioned an accumulation juries sustained from a fall upon an alleged defective

of snow and ice at that point, or made the surface of and dangorous sidewalk. The argument for a reversal the walk substantially different there from what it of the judgment is predicated mainly upon two pro- was elsewhere, we are not prepared to say that as positions. It is contended (1) that there was no evi- respects its condition when the injury complained of dence which tended to show such a defect in the side

was suffered, the city was remiss in its duty for not walk, at the place whero the plaintiff fell, as rendered having removed the projecting brick which caused the the town liable to the imputation of actionable negli- plaintiff to fall. The fall was vot oocasioned by the gence; (2) that there was no evidence tending to show plaintiff stepping in a hole, or slipping on ice accumuthat the plaintiff was in the exercise of due care at the lated therein, but by striking her foot against a brick time she sustained the injury.

which projected above the surface of the icy walk. If Concerning the Orst point, it is only necessary to we should assume however that the walk was defeo


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tive and dangerous at the time of the injury, and that of South Bend v. Hardy, 98 id. 586; Town of Albion v. the town neglected its duty in not repairing it, princi- Hetrick, 90 id. 546; Turner v. Buchanan, 82 id. 147. ples too firmly established to be departed from require The doctrine to be extracted from these cases is that that the judgment should be reversed nevertheless. although a sidewalk or highway may be in an apparThe plaintiff was guilty of contributory negligence, ently defective or dangerous oondition, yet a person and it is too well settled to require reference to with knowledge of the defect or dauger is not on that authority that contributory negligence prevents a re- account obliged to abandon travel upon the highway, covery in an action like this. It is disclosed in the if by the exercise of care proportioned to the known evidence given on the stand by the plaintiff herself danger, he may reasonably expect to sbun or avoid the that she was returning home from church after the defect. Jf the defect be one which does not render evening service in company with and by the side of the way wholly impassable, and which can only result another lady. She had passed over the sidewalk in injuriously to the traveller, if not shunned, if there be question frequently. Quoting her own language, as an apparently safe way of passage, without going into we find it repeated again and again in the record of the obvious defect, the traveller is not to be held to a her testimony, she said: “I knew it was a bad place, rigorous account if he is deceived or misled notwithbut thought I could pass it. Had passed it before. standing his effort to avoid the danger. The author.

* * I put on old shoes, and socks over them. I ities however lend uo countenance to the notion that put them on that night to go through this place safely, a person having knowledge of an obvious defect, or of and for all other bad places.

I knew it was a place in a highway which naturally suggests to a a bad place, but thought I had prepared for it. Knew person of common understanding that it is dangerous, just where it was. I could tell it as well after night may nevertheless voluntarily cast himself into or upon as in day-time. * * I could see the place when I the defect, upon the theory that he is not obliged to came up; knew it was a bad, dangerous place, but forego travel upon the highway. In Horton v. Ipswich, thought I would get through safe. I stepped carefully 12 Cush. 488, the court said: “The real point is not but stumbled and fell.

Nothing to prevent whether the plaintiff was chargeable with any neglime from walking next to the fence, except that Mrs. gence in making his way over the road, after he had O'Mearis was walking there. Don't know why I did entered upon it, but whether be knew or had reason not let go her arm and walk there. Had passed there to believe that the road was dangerous when he often going to and from church.” Thus it appears entered on it, or before he reached any dangerous that a person of mature years, and in the possession place. If so, he could not, in the exercise of ordinary of all her faculties, deliberately walked into a place prudence, proceed and take his chance, and if be which, upon her hypothesis of the case, was one of should actually sustain damages, look to the town for kuown danger, and which she could bave avoided by indemnity." Parkhill v. Town of Brighton, 61 Iowa, simply disengaging herself from, and following in the 103. “ Where there is danger, and the peril is known, footsteps of her friend.

whoever encounters it voluntarily and unnecessarily The statement of Lord Ellenborough in Butterfield cannot be regarded as exercising ordinary prudence, v. Forrester, 11 East, 60, that “a party may not cast and therefore does so at his own risk.” Corlett v. City himself upon an obstruction which bas been made by of Leavenworth, 27 Kan. 673; Schaefler v. City of Santhe fault of another, and avail himself of it, if he do dusky, 33 Ohio St. 246. If the defect in the pavement not himself use common and ordinary caution to be which the plaintiff voluntarily encountered, presented in the right,'' was hardly less applicable to the case in an obstruction, or was of such a character that the which it was made than to the one under considera- town of Gosport was bound to take notice of it, so tion. "Two things must concur," said that learned that it was guilty of negligence in pot repairing it, the judge, " to support this action, an obstruction in the conclusion follows necessarily that the plaintiff, having road by the fault of the defendaut, and no want of full and equal knowledge of its character, was guilty ordinary care to avoid it on thė part of the plaintiff." of contributory negligence in venturing upon it, 110 This rule, stated in different language, has been con- matter how carefully she may have prepared for the sistently and uniformly declared and adhered to by encounter, nor with how much care she went upon it. appellate courts in every common-law jurisdiction. Her duty was to avoid the obstruction, or venture Beach Contrib. Neg., $$ 71-77; Bruker v. Town of upon it at her own risk. Durkin v. Troy, supra. Covington, 69 Ind. 33; President, etc., v. Dusouchett, 2 These conclusions lead to a reversal of the judgment. id. 586; Riest v. City of Goshen, 42 id. 329; Turnpike Judgment reversed, with costs. Co. v. Baldwin, 57 id. 86. One who knows of a dangerous obstruction in a street or sidewalk, and yet attempts to pass it, when on account of darkness or NEW YORK COURT OF APPEALS ABSTRACT. other hindering causes he cannot see so as to avoid it, takes the risk upon himself. For a much greater BOUNTY-COUNTY INDEBTEDNESS EXTENSION OF reason does he take the risk upon himself, if seeing DEBT.-At the close of the civil war, Saratoga county, an obstruction and knowing its dangerous character, New York, was largely indebted on account of its he deliberately goes into or upon it when he was under county and town bounty debts, incurred during the no compulsion to go, or might have avoided it by going war pursuant to various resolutions of the board of around. Thompson v. Railroad Co., 54 Ind. 197; Rail- supervisors of said county for the payment of bounroad Co. v. Schmidt, 81 id. 264; King v. Thompson, 87 ties to volunteers. These debts were of the nature of Penn. St. 365; Railroad Co. v. Brannagan, 75 Ind. 490; short loans, and to provide for their payment, taxes Erie v. Magill, 101 Penn. St. 616; Wilson v. City of were levied each year, and the treasurer was authorCharlestown, 8 Allen, 137; Durkin v. Troy, 61 Barb. ized by the said board to procure an extension of time 437; City of Centraline v. Krouse, 64 Ill. 19.

of payment of suoh portion of said debts as the sev. We do not question the doctrine of the cases which eral towns owing the same might desire extended; hold that because one has knowledge that a highway which authority was given by resolution of said board or sidewalk is out of repair, or even dangerous, he is each year until 1875. The treasurer assumed to exernot therefore bound to forego travel upon such high-cise the authority given bim to extend the debts by way or sidewalk. City of Huntington v. Breen, 77 Iud. borrowing money to pay maturing obligations, and 30; Wilson v. Trafalgar, etc., 83 id. 326; Wilson v. giving notes of the county therefor, signed by himself Trafalqar, etc., id. 287; Nave v. Flack, 90 id. 212; City a8 treasurer, and in other cases by giving new obliga“to pro

tions to creditors and taking up the old notes or to constitute larceny, there must have been a taking bouds. Held, that by virtue of Laws N. Y. 1864, chaps. of personal property against the will of the owner. 8, 72, the county board was vested with power to bor- The other offense could not be confounded with it. row money and renew its obligations from time to In either case the property may have been obtained time, for the purpose of paying or continuing its in- by artifice or fraud; but if in one the owner ivtended debteduess incurred in the payment of bounties, and to part with his property absolutely, and to convey it its previous obligations with respect thereto were le- to the defendant, and in the other intended only to galized, and that the power assumed and exercised by part with the temporary possession for a limited and the treasurer, pursuant to the resolutions of the board, specific purpose, retaining the ownership in himself, was upheld by said acts. (2) The treasurer of Sara- the latter case would be larceny, but the former would toga county, New York, had been empowered by the not. It was therefore uniformly held, that if a person resolutions of the board of supervisors of said county through the fraudulent representations of another, to procure an extension of time of the "town bounty delivered to him a chattel, intending to pass the propdebt,” which was done by the giving of new notes or erty in it, the latter could not be indicted for larceny, bonds, and taking up the old obligations, or by mak- but only for obtaining the chattel under false preing new loans. Held, that though there was no such tenses. Iu Ross v. People, 5 Hill, 294, a conviction for debt, strictly speaking, yet the county was not re- larceny was reversed because the goods were delipleased from its liability for such renewals, as it was ered by the owner with the intention to sell them, well known what debt was intended by that descrip- and so baving obtained them under a purchase, tion, it being the one usually employed by the board. although by fraud and false preteuses, the purchaser (3) The board of supervisors of Saratoga county, New could not be convicted of larceny. The distinction York, authorized the treasurer of said county

was adhered to, although with reluctance, and in de cure an extension of the time of payment of the town ference only to earlier cases. The doctrine then apbounty debt, as the several towus owing the same might plied was laid down, before the adoption of the Redesire," and to that end he was authorized to borrow vised Statutes, in Mowrey v. Walsh, 8 Cow. 238, and money and give notes therefor; but the amount was re- governed the courts of this State until the adoption of stricted to that necessary to extend such part of the said the Penal Code in 1881. Bassett v. Spofford, 45 N. Y. debt as he was requested to extend, and the authority 388; Zink v. People, 17 id. 114; Thorne v. Turck, 94 id. to give new obligations was limited to the amount of 90; People v. Morse, 99 id. 662. And it is obvious that the debt actually extended. The proof showed that if these decisions apply, neither the opening of the the treasurer had fraudulently given notes largely in district attorney, nor the evidence put in by him, gave excess of the amount necessary to extend the said even color of support to the indictment, and it should debt as requested. The plaintiff brought suit on two not have been sustained. The indictment was for of the notes given iu renewal of an old obligation. larceny as defined at common law, but concerning Held, that the authority of the treasurer to borrow which, as above interpreted, no evidence was given; money and give new notes or bonds having been that crime therefore being left unproven, while the proven, it was incumbent upon the defendant to show conviction was bad upon proof of false representathat the transaction with plaintiff was in this particu- tions, the making of which was not disclosed by the lar instance outside of or in excess of the treasurer's indictment. As to the act charged there was no proof: actual authority, in order to be relieved of its obliga- as to the act proved, no allegations. But the Penal tion. (4) The resolutions of the board of supervisors Code recognized that the moral guilt of the two ofof Saratoga County, New York, authorizing the fenses was the same, and swept away the theory by county treasurer “to procure an extension of the time which the courts had felt constrained to distinguish of payment of such portion of the towu bounty debt them in principle. By it larceny is so treated (ch. 4) as the several towns owing the same may desire ex- as to includo not only that offense as defined at comtended,” granted authority to renew the said debt as mon law and by the Revised Statutes (2 Rev. Stat., represented by the notes, bonds and obligations of 678, 690), but also embezzlement, obtaining property said county, and gave no authority to create new by false pretenses, and felonious breach of trust. debts, or to allow a doubtful or disputed claim. (5) There are at least four distinct and separate acts or The bonds and notes of a county issued for loans au- ways by which a person may commit or be guilty of thorized by law are not open accounts for county larceny. The first embraced larceny as described at charges, which must be presented to the board for

common law and under the Revised Statutes, supra; audit. Oct. 4, 1887. Parker v. Board of Supervisors the second embraces the offense formerly known as of Sarutoga Co. Opinion by Andrews, J.

obtaining property by false representations. In sub

stance, the defendant has been indicted for larceny in CRIMINAL LAW-FALSE PRETENSES-LARCENY-IN- doing the first act, and has been convicted of larceny DICTMENT.-The defendant was indicted for the crime in doing the secoud. From what has already been of larceny, as follows: ** certain of the goods," said, and the cases cited, it appears that under the etc., "of

then and there being found, un- former system concerning crimes and punishments lawfully and feloniously did steal, take and carry prevailing in this State the conviction could not be away, contrary to the form of the statute in such case sustained. The variance between the indictment and made and provided." Held, that the indictment, proof would be fatal. The respondent relies however though sufficient to maintain a conviction of larceny upon the system introduced by the Code of Criminal as defined at common law, and by 2 Rev. Stat. N. Y. Procedure. Laws 1881, cb. 442; Laws 1882, ch. 360. p. 679, $ 63; id., p. 690, § 1, was insufficient to maintain The statute abolishes all the forms of pleading before a conviction under Penal Code N. Y., $ 528, which de- existing in criminal actions, and enacts that the clares that one obtaining property from the possession forms of pleading and the rules by which their suffiof the true owner by color or aid of false representa- ciency shall be determined are those presoribed tions, or a false token or writing, is guilty of larceny, therein. Section 273. It declares that on the part of by reason of not stating the act constituting the crime the people, the first pleading is the indictment ($ 274), under this law, as required by Code Crim. Proc. and defines this pleading as an accusation in writing, N. Y., S 275. Under the former system a substantial charging a person with a crime ($ 254). It must condistinction was recognized between the crimes of lar- tain a plain and concise statement of the act consticeny (2 Rev. Stat., p. 679, $ 63; id., p. 690, § 1) and tuting the crime, without unnecessary repetition. false pretenses (2 Rev. Stat., p. 677, SS 53, 54). In order Seotion 275. The indictment therefore must charge


the crime, and it must also state the act constituting the crime. The omission of either of these things would necessarily be fatal to the indictment. If there was no accusation of a crime, the paper, however formal in other respects, would not be an indictment, and so there would be no criminal action. If it contained no statement of the act constituting the crime, there would be no description of the offense, and neither an acquittal nor a conviction would enable the defendant to withstand a further prosecution for the same crime. Moreover the plain words of the statute as well as its object, would be disregarded; for the manifest intention of the Legislature in requiring the indictment to state the act constituting the crime was, among other things, that the accused should learn from it what he was called upon to defend. The form of the indictment given in the Code ($ 276) leads to the same conclusion. It provides in one sentence for a statement of the uame of the crime, as murder, larceny, etc., whereof the grand jury accuse the defendant, or if it be a misdemeanor having no general name, such as libel, assault, etc., requires an insertion of a brief description of it as given by statute, and then adds, “here set forth the act charged as an offense." It provides also that “ the indictment must charge but one crime, and in one form, except where it may be committed by different means (5 278), in which case the crime may be charged in several counts to have been committed by different means ($ 279), and declares “the indictment sufficient if it can be understood therefrom that the act or omission charged as the crime is plainly and concisely set forth.” We see therefore that the indictment must name the crime, and state the act constituting it; and if either one of several acts constitute the crime, the several acts must be separately stated in different counts. Can the indictment before us be supported as complying with these provisions? It consists of one count. It accuses the defendant of the crime of grand larceny in the first degree, and then states with sufficient conciseness an act constituting the crime, by saying the defendant “ unlawfully and feloniously did steal, take and carry away” the property therein described. These words are to be construed in their usual acceptation in common language, except such as are defined by law, and those are to be construed according to their legal meaning. Section 282. Undoubtedly under the Penal Code, the offeuse or crime charged is sufficiently made out by these averments. But the act described was not proven. There was neither expectation nor intention on the part of the plaintiff to prove it. This we know from the opening of the district attorney. The case he presented and the evidence he offered, all tended to show that the defendant did not commit the act charged in the indictment, but did commit the act described in the second alternative of the statute, viz., “obtaining property from the possession of the true owner by color or aid of false representations or pretense, or a false token or writing.” And such is the only claim now made by the learned district attorney. He says in his printed points glven to us as an answer to the appeal: “On the trial it was proven that on the third day of February, 1885, the defendant obtained from Ilus F. Carter a quantity of carpets of the value of about $700; that he obtained such carpets by means of alse and fraudulent representations." The accused could not fail to uuderstand from the indictment that he was charged with the crime of grand larceny. In that respect the Code was complied with. It stated also a particular act as constituting the crime. In that respect also the Code was complied with. The difficulty is tbat the act stated was not proven, and that the act proven was not stated. The objection that the proof varied from the crime charged in the in

dictment was therefore well taken. It related to sub. stance, and not form, and pointed to an imperfection which tended to prejudice the substantial rights of the defendant upon the merits. It must prevail. The learned counsel for the respondent cites People v. Willett, 102 N. Y. 251, as substantially settling in his favor the present contention. In that case a very different question was involved—the sufficiency of an indictment upon demurrer. Here is a question of variance between the indictment and the proof. So far as the first involved the crime of Jarceny it was well charged; and so it is in the case under consideration, but it remains unproven. The important difference between the former law and the present, so far as this case is concerned, is that the court is no longer called upon to decide whether an offense is larceny, embezzlement or false pretenses; nor is justice liable to be defeated by too nice a discrimination. Each of these acts is larceny. But the general principle of pleading bas not been substantially changed. Under either system an offense consists of certain acts done or omitted under certain circumstances; and under neither is any indictment sufficient which does not accurately and clearly allege all the ingredients of which the offense is composed, so as to bring the accured within the true meaning and intent of the statute defining the offense. Under the former, this end was secured by rules formulated and applied by the courts through a long series of decisions; under the latter it is made imperative by the provisions of the statute. In the case at bar the defendant was left uninformed of the real act committed by him, and subjected to the charge of larceny for an act which he did not perform. The variance is fatal to the proceeding. Oct. 4, 1887. People v. Dumar. Opiuion by Danforth, J.

INSURANCE-WHAT CAPABLE OF — INSURANCE ON ROYALTY CONTRACT-DAMAGES-EVIDENCE. --(1)Plaintiff licensed Ellis & Co. to use a certain patent in consideration of specified royalties to be paid for such use. Defendant insured plaintiff against the loss of such royalties from damages by fire to the premises of Ellis & Co. Held, that the royalties were capable of supporting an insurance, and that the policy of insurance was not a wager policy. The insurance which forms the subject of this litigation was of an unusual character, and presents a question for the solution of which we have no admitted precedent. It is argued that the policy is a wager policy. It is quite true, that beyond the guaranteed minimum they were contingent, and dependent upon the condition of the market, or even possibly upon the will or choice of Ellis & Co. in the reasonable control of their business. That firm was not bound to pay except upon oil manufactured and sold; and might limit both, or be compelled by the market to limit both, to a production yielding no royalties beyond the guaranteed minimum; and so it is said, the plaintiff had no fixed or definite right to royalties beyond such minimum, no assurance of their existence, no power to compel or demand their being, and could not be said to have lost what it neither possessed nor had the absolute right to possess. But a further fact in the case establishes more definitely the plaintiff's risk and loss, and the direct causative connection between that loss and the fire which injured the works. The license held by Ellis & Co. to use the plaintiff's patent was an excluBive one, and the earning power of that patent was thus narrowed to the business of Ellis & Co. If the latter did not continue their business, and so preserve the fruitfulness of the patent by reason of some fault of their own, or from a cause for which they were re

ponsible, the exclusive character of the license ended and the patentees were at liberty to transfer the right to others, and thus secure the profits of their inven

tion. But if the business of Ellis & Co. was lessened tional Filtering Oil Co. v. Citizens' Ins. Co. of Missouri. or restricted because of a fire which should destroy or Opinion by Finch, J. impair their works, the exclusive right given them

FIRE - FORFEITURE - INCREASE OF RISK.was to coutinue; the patentees could not license

A policy of insurance contained the following proothers, and must necessarily bear the loss of their li

visions: “The working of carpenters, roofers, gasminished royalties. This was the one business risk

fitters, plumbers and other mechanics in building, alinvolved in their contract. Against all others they

tering or repairing any building or buildings covered could provide, but this one they were compelled to

by this policy will cause a forfeiture of all claim unbear by the terms of their agreement. Against that

der this written policy, without the written consent risk they insured. It had a direct and necessary con

of this company indorsed thereon." It also provided nection with the safety of the structures burned. A

that the policy should be void “if the risk be infire destroying them destroyed the royalties pro tanto,

creased by any means within the control of the as. became the efficient cause of their loss, and so was es

sured." The evidence showed that at the time of the tablished the needed connection between the prem

insurance the building was occupied as a grocery store ises insured and the royalties dependent upon their

by a tenant of the insured, who subsequently exesafety, and measuring the loss resulting from their de

cuted a lease of the building to other tenants, who struction. The policy was therefore not a mere wager,

intended using it for the purpose of carrying on the and the royalties could be protected by an insurance

business of drying fruit therein. The lease provided against the fire risk which threatened them. The au

that they should have the privilege of putting the mathorities in this State go far enough in their general

chinery needed for their business into the building. principles to cover the case in hand. Herkimer v.

This required the removal of large portions of two Rice, 27 N. Y. 163; Insurance Co. v. Allen, 43 id. 389;

floors and the roof, and the introduction therein of Rohrbach v. Insurance Co., 62 id. 47. They decide

two flues constructed of inflammable materials, and that an interest legal or equitable in the property

extending through the entire height of the structure. burned is not necessary to support an insurance upon

Held, to be a clear violation of the conditions of the it; that it is enough if the assured is so situated as to

contract. Certain conditions are very generally rebe liable to loss if it be destroyed by peril insured garded by underwriters as largely increasing the hazagainst it; that such an interest in property connected

ards of insurance, and they, unless corresponding prewith its safety and situation as will cause the insured

miums are paid for the extra risks, are usually into sustain a direct loss from its destruction is an in

tended to be excluded from the obligation of the polsurable interest; that if there be a right in or against icy. Such are the conditions in reference to unoccuthe property which some court will enforce upon the

pied houses, changes in the occupation from one kind property, a right so closely connected with it, and so

of business to another more hazardous, the use of inmuch dependent for value upon the continued exist

flammable substances in buildings, and their occupaence of it alone as that a loss of the property will

tion by carpenters, roofers, etc., for the purpose of cause pecuniary damage to the holder of the right making changes and alterations. These conditions, against it, be has an insurable interest. The plaintiff

when plainly expressed in a policy, are binding upon brought its case within these principles. A loss, meas

the parties, and should be enforced by courts, if the ured by the diminution of its royalties, was the in

evidence brings the case clearly within their meaning evitable result to it of a fire in the works of Ellis &

and intent. It tends to bring the law itself into disCo. It could not substitute a new licensee, and must

repute when by astute and subtle distinctions a plain await the repairs necessary to a renewal of the busi

case is attempted to be taken without the operation ness. By its contract it became so situated relative to

of a clear, reasonable and material obligation of the the buildings insured that it had a direct pecuniary

contract. There can be no reasonable question but interest in their safety from accidental fire. That in

that the evidence here showed a clear and deliberate terest it could, as it did, insure. (2) Plaintiff was paid

attempt to change the character of the occupation of certain royalties by Ellis & Co. for the use of a patent,

the insured building from a comparatively safe to a which royalties were insured by defendant, under the

hazardous one, and a substantial alteration of the following agreement: “ Whereas Ellis & Co., by vir

structure by carpenters. These alterations required tue of an agreement with the assured, are bound to

the removal of large portions of two floors and the pay to them royalties for the privilege of using their

roof, and the introduction therein of two fues conpatent, which royalties are guaranteed to amount to

structed of inflammable materials, and extending $250 a month, now therefore the conditions of this in

through the entire height of the structure, affording surance are, that in case the premises occupied by

every means for the spread of conflagration, and conEllis & Co. shall be damaged by fire so as to cause a

stituting a large increase of combustible material. diminution of said royalties, this company will make

The case is brought clearly within the spirit as well good to the insured the amouut of such diminution

as the letter of the contract, and if it does not show a during the restoration of said premises to their pro

violation of the conditions, we can conceive of no site ducing capacity immediately preceding said fire," etc.

uation which would have effected the result. In case Held, that the proper construction of the policy was

there had been a submission of the facts to the jury, that all the royalties payable under the contract be

and it had found that carpenters were not engaged in tween plaintiff and Ellis & Co. were insured, and not

making alterations of this building within the meanmerely the guaranteed minimum of $250 per mouth.

ing of the policy, it would have been the clear duty of (3) In the action on the above policy the loss to plain

the court to have set aside the verdict. Courts are tiff was measured by the amount of royalties paid for

under no obligation to yield their assent to verdicts two months immediately preceding the fire, during

which deuy signification to language, or violate the the time the works were being restored, and for some

plain meaning and intent of an unambiguous coumonths thereafter. Held, that this was a proper mode

tract. Oct. 4, 1887. Mack v. Rochester German Ins. of ascertaining the loss. (4) Under agreement, Ellis

Co. Opinion by Ruger, C. J. & Co. were to pay plaintiff certain royalties for the use of its patent, which royalties were insured by de- JUDGMENT-RES ADJUDICATA-EVIDENCE-PAROL fendant. Held, that the agreement between plaintiff PARTIES TO CONTRACT.-In a suit brought by plaintiffs and Ellis & Co. could be introduced in evidence.in an for amount due from defendants under a charteraction on the polioy of insurance. Oct. 4, 1887. Na- party, the defense was breach of covenant of sea

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