No. 119. ii. The Same, where Plaintiff Purchased the Property after Insurance. [TITLE.] I. [Allege incorporation as in last form.] II. That [name of original insurer] was the owner of, or had an interest in, etc., etc. III. [The same as in last form, substituting the names of the original insurers, instead of the words "the plaintiff.”] IV. That on the......day of.... . . . day of........, 187., at... . . . with the consent of the defendants, in writing, on said policy, by their said agents, the said [original insured] sold, assigned, and conveyed to the plaintiff, his interest in the said [property] and in the said policy of insurance. [Continue as in last form.] [Demand of Judgment.] 19. Interest.-As to the form of averment of an assignee's interest in the subject insured, see Granger v. Howard Ins. Co., 5 Wend. 200. No. 120. iii. Another Form. [TITLE.] The plaintiff complains and alleges: I. That he was the owner of a [match factory, and the machinery therein], in the town of......, county of......, at the time of its insurance and destruction by fire, as hereinafter mentioned. .., 187., at. ...... II. That on the... . . . . day of... in consideration of the sum of... . . . . . dollars to them paid, the defendants executed to the plaintiff a policy of insurance on the said property, a copy of which is hereto annexed [marked "Exhibit A"] and made part of this complaint. 187., the said III. That on the........day of.... property was totally destroyed by fire. IV. That the plaintiff's loss thereby amounted to more upon each part of the property separately insured, than the amount of such separate insurance. V. That on the......day of...... 187., he furnished the defendant with proof of his said loss and interest, and otherwise duly performed all the conditions of the said policy on his part. VI. That the defendant has not paid the said loss. [Demand of Judgment.] [Annex "Exhibit A.”] L No. 121. iv. By Insured, on Agreement to Insure, Policy not Delivered. [TITLE.] The plaintiff complains, and alleges: I. [Incorporation of defendants, as in Form No. 119.] II. That on and before the......day of... ..., 187., the plaintiff applied to A. B., who was then and there the duly authorized agent of the defendants, for insurance against loss or damage by fire upon a certain stock of merchandise, the property of said plaintiff, consisting of [describe it], contained in a building occupied by the plaintiff for [state what], in said town of...... And the defendants, by their said agent, then and there agreed to become an insurer to the plaintiff on the said stock for three months from that day, for... . . . . . dollars, at a premium of......., and that the said defendants would execute and deliver to the plaintiff a policy of insurance in the usual form of policies issued by them, for the sum of......dollars, for the term of three months from the said day. .... III. That the plaintiff then and there paid to the defendant said premium, to wit, dollars. IV. That it was then and there agreed between the plaintiff and the defendants, that the said insurance should be binding on them for the term of three months from the time of the receipt of the said premium, for the sum of ... dollars; and the said defendants then and there, in consideration of the premises, agreed with the plaintiff, to execute and deliver to him, in a reasonable and convenient time, a policy, in the usual form of policies issued by said company, insuring the said stock of goods in the sum of .......... dollars against loss and damage by fire, the insurance to commence at the time of the receipt of the said premium, and to continue for the said term of three months. V. That the defendants, by a policy of insurance issued in their usual form, among other things did promise and agree [here set out legal effect of the contemplated policy]. VI. That after the insurance so made, and after the said promise to execute and deliver a policy in conformity thereto, and within the said term of three months, for which the said plaintiff was so insured, to wit, on the .... day of 187., the said stock of merchandise in the said building mentioned and intended to be so insured, was totally destroyed by fire. VII. That the plaintiff duly fulfilled all the conditions of said agreement and insurance on his part, and that more than ..... days [or otherwise, as required by the policy] before the commencement of this action, to wit, on the .... day of ... , 187., at .., he gave to the defendants due notice and proof of the loss as aforesaid, and demanded payment of the said sum of ..... lars. VIII. That the defendant has not paid the same. [Demand of Judgment.] dol 20. Assignee. In an action on a policy of fire insurance, the interest of the assignee must be stated in the complaint, to make out a cause of action: 5 Wend. 202. A complaint by the assignee of a fire policy averred an insurance of assignor on his building, that the policy was duly assigned with the consent of the insurers, that the plaintiff, at the time of the loss, was the lawful owner of the policy and of the claim against the insurers by reason of the policy and loss, and he made a demand of payment accompanied with the written assent of the person to whom the original assured had, after the loss, assigned all his property: Held, bad on general demurrer, as not showing any interest of the plaintiff or his assignor in the subject insured: Fowler v. N. Y. Indem. Ins. Co., 22 N. Y. 422. The assignee of a policy of insurance takes it subject to all equities: 113 Mass. 514. 21. Assignment.-An assignment of a policy of insurance upon a stock of goods, effected in the name of the assignor, made as collateral security for a debt, with an agreement that in case of loss by fire the assignee shall collect the money and pay the debt, attaches in equity as a lien upon the amount due on the policy to the extent of the debt, as soon as the loss occurs: Bibend v. L. F. and L. Ins. Co., 30 Cal. 78. 22. Executory Agreement to Insure.-Of the proper form of action to recover on an executory agreement to issue an insurance policy, see Post v. Etna Ins. Co., 43 Barb. 351. 23. Form. For a form of complaint, see Rockwell v. Hartford Fire Ins. Co., 4 Abb. Pr. 179. 24. Notice of Loss.-If the notice alleged states the twenty-fourth of May, the plaintiffs were not precluded from showing on the trial that the proper notice was given on the morning of the twenty-first: Hovey v. American Mut. Ins. Co., 2 Duer, 554. As to when the insurer is exonerated by failure to give notice of loss, preliminary proofs, etc., see Cal. Civil Code, sec. 2633-2637. The plaintiff complains, and alleges: ........, 187., at...... I. [Allege incorporation as in Form No. 118.] II. That on the....day of.. the defendant, in consideration of the [annual, semi-annual, or otherwise] payment by one A. B. to it, of ...... dollars, made their policy of insurance in writing, of which a copy is hereto annexed, marked "Exhibit A," and made part of this complaint, and thereby insured the life of said A. B. in the sum of. ... dollars. III. That on the ...... day of. the said A. B. died. IV. That on the day of...... 187., at.... said A. B. left a will, by which the plaintiff was appointed the sole executor thereof [or this plaintiff and C. D. were appointed executors thereof]. V. That on the .. ... day of ..... 187., said will was duly proved and admitted to probate in the Probate Court of the County of ..... and letters testamentary thereupon were thereafter issued and granted to the plaintiff, as sole executor [or otherwise], by the Probate Court of said county; and this plaintiff thereupon duly qualified as such executor, and entered upon the discharge of the duties of his said office. ....... " VI. That on the .... day of ... 187., the plaintiff furnished the defendant with proof of the death of the said A. B., and that said A. B. and the plaintiff each duly performed all the conditions of said insurance on their part. VII. That the defendant has not paid the same, and the said sum is now due thereon from the defendants to the plaintiff, as such executor. [Demand of Judgment.] 25. Application.-A paper attached to the application, with the heading "Questions to be answered by the medical examiner for the company," is not to be deemed the application or a part of the application; and that statements made by the applicant to the medical examiner, in answer to the questions in that paper, were not warranties within the meaning of the policy: Hig bee v. Guardian, etc., Ins. Co., 66 Barb. 462. Incorrect statements by the applicant for a policy of life insurance, in answer to a question by the examining physician, will not be deemed such a misrepresentation as to avoid the policy when it appears that the physician's report as to the applicant's condition, and not the statements of the applicant himself, were relied upon by the company: Id. As to when the application will be held to be a part of the policy, and what constitutes a warranty, see same case. 26. Conflict of Laws.-A policy of life insurance was made by a New York company, with a condition that it should not become valid until countersigned by their agent at Chicago, and the premium paid, and the condition complied with in Chicago: Held, that the law of Illinois, as to assignment of the policy, prevailed, and that such an assignment by a married woman, by way of pledge, was good in equity: Pomeroy v. Manhattan Life Ins. Co., 40 Ill. 398. 27. Construction of Instruments and Statutes.-A policy of insurance on the life of a husband was made payable to the wife, her executors, administrators or assigns, for her sole use, and in case of her death before his, to be paid to her children. A statute authorized a husband to effect such an insurance, and protected it from his creditors. The wife assigned the policy for value, and died before her husband: Held, that the policy was payable to the children, not to the assignee, in the event which had happened: Connecticut Mut. Life Ins. Co. v. Burroughs, 34 Conn. 305. 28. Suicide.—A life insurance policy contained a proviso that, in case the insured should "die by his own hand or act, the policy should be void." The insured committed suicide by hanging. An action was brought on the policy: Held, 1. That this proviso would not prevent a recovery if the insured killed himself in a fit of insanity, which overpowered his consciousness, reason and will; 2. That it was incumbent upon the plaintiff to show that the insured was insane when the act of self-destruction was committed; proof merely that he was insane at times would not be sufficient; 3. That insanity could not be inferred from the fact that the insured destroyed his own life: Knickerbocker Life Ins. Co. v. Peters, 42 Md. 414; see Merritt v. Cotton States Life Ins. Co., 55 Ga. 103; Hathaway v. Nat. Life Ins. Co., 48 Vt. 335. No. 123. vi. By a Wife, Partner or Creditor of the Insured. [TITLE.] The plaintiff complains, and alleges: ......... 187., at I. That on the ...... day of ... the defendant, in consideration of the [annual, or otherwise] payment to it of ...... dollars, executed to the plaintiff a policy of insurance on the life of [her husband] A. B., of which a copy is hereto annexed, and made a part of this complaint, and marked "Exhibit A.” II. That the plaintiff had a valuable interest in the life of the said A. B. at the time of his death, and at the time of effecting the said insurance. III. That on the....day of..... the said A. B. died. IV. That on the....day of...... 187., at. 187., the plaintiff |