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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 pellee 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 iu keeping its streets and of the works at Pacific Junction, for which the com- | sidewalks in a reasonably safe conditiou 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 Pacific Junction is venienced in passing, does not necessarily 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 personalexerends. 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 nature 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 III. 82; City of Aurora v. Pulfer, 56 III. 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 and 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 had 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
somewhat lower. There was evidence tending to show | PPEAL from Circuit Court, Owen county.
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 arguinent 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 not 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
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 doctriue 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
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, ouvery 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. If 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 aud 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. Ipsuich, 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 he 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 I indemnity." Parkhill v. Town of Brighton, 61 lowa, 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 not 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 the part of the plaintiff." | of contributory negligence in venturing upon it, no 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. I 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 camuot gee 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 Pen. St. 365; Railroad Co. v. Brannagan, 75 Iud. 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 Centruliu 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 as treasurer, and in other cases by giving new obligations to creditors and taking up the old notes or | to constitute larceny, there must have been a taking bonds. 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 intended debteduess incurred in the payment of bounties, aud 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 actr. (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 delivleased 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 having obtained them under a purchase, tion, it being the one usually employed by tbe 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 "to 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 y. 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 bad 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 com. tended," 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 tbe 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, ch. 442; Laws 1882, ch. 360. p. 679, S 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 tbeir 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 i 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. S 63; id., p. 690, § 1) and tuting the crime, without unnecessary repetition. false pretenses (2 Rev. Stat., p. 677, $S 53, 54). In order Section 275. The indictment therefore must charge the crime, and it must also state the act constituting dictment was therefore well taken. It related to subthe crime. The omission of either of these things stauce, and not form, and pointed to an imperfection would necessarily be fatal to the indictment. If there which tended to prejudice the substantial rights of the was no accusation of a crime, the paper, however for- defendant upon the merits. It must prevail. The mal in other respects, would not be an indictment, | learned counsel for the respondent cites People v.
learned counsel for the responde and so there would be no criminal action. If it con Willett, 102 N. Y. 251, as substantially settling in his tained nostatement of the act constituting the crime, favor the present contention. In that case a very there would be no description of the offense, and different question was involved-the sufficiency of an neither an acquittal nor a conviction would enable the indictment upon demurrer. Here is a question of vadefendant to withstand a further prosecution for the riance between the indictment and the proof. So far same crime. Moreover the plain words of the statute as the first involved the crime of larceny it was well as well as its object, would be disregarded; for the charged; and so it is in the case under consideration, manifest intention of the Legislature in requiring the but it remains unproven. The important difference indictment to state the act constituting the crime between the former law and the preseut, so far as this was, among other things, that the accused should case is concerned, is that the court is no longer called learn from it what he was called upon to defend. The upon to decide whether an offeuse is larceny, embezform of the indictment given in the Code ($ 276) leads zlement or false pretenses; nor is justice liable to be to the same conclusion. It provides in one sentence defeated by too nice a discrimination. Each of these for a statement of the uame of the crime, as murder, acts is larceny. But the general principle of pleading larceny, etc., whereof the grand jury accuse the de- | has not been substantially changed. Under either fendant, or if it be a misdemeanor having no general system an offense consists of certain acts done or name, such as libel, assault, etc., requires an insertion omitted under certain circumstances; and under of a brief description of it as given by statute, and neither is any indictment sufficient which does not then adds, “here set forth the act charged as an of accurately and clearly allege all the ingredients of fense." It provides also that “the indictment must which the offense is composed, 80 as to bring the accharge but one crime, and in one form, except where cured within the true meaning and intent of the statit may be committed by different means (5 278), in ute defining the offense. Under the former, this end which case the crime may be charged in several counts was secured by rules formulated and applied by the to have been committed by different means ($ 279), courts through a long series of decisions; uuder the and declares “the indictment sufficient if it can be latter it is made imperative by the provisions of the understood therefrom that the act or omission charged statute. In the case at bar the defendant was left unas the crime is plainly and concisely set forth." We informed of the real act committed by him, and subsee therefore that the indictment must name the jected to the charge of larceny for an act which he did crime, and state the act constituting it; and if either not perform. The variance is fatal to the proceeding. one of several acts constitute the crime, the several Oct. 4, 1887. People v. Dumar. Opiuion by Danacts must be separately stated in different counts. | forth, J. Can the indictment before us be supported as comply INSURANCE-WHAT CAPABLE OF - INSURANCE ON ing with these provisions? It consists of one count. | ROYALTY CONTRACT-DAMAGES-EVIDENCE. --(1)PlainIt accuses the defendant of the crime of grand lar- tiff liceused Ellis & Co. to use a certain patent in conceny in the first degree, and then states with sufficient | sideration of specified royalties to be paid for buch conciseness an act constituting the crime, by saying use. Defendaut insured plaintiff against the loss of the defendant “ unlawfully and feloniously did steal, such royalties from damages by fire to the premises of take and carry away" the property therein described. Ellis & Co. Held, that the royalties were capable of These words are to be construed in their usual ac supporting an insurance, and that the policy of insurceptation in common language, except such as are de ance was not a wager policy. The insurance which fined by law, and those are to be construed according forms the subject of this litigation was of an unusual to their legal meaning. Section 282. Undoubtedly character, and presents a question for the solution of under the Penal Code, the offense or crime charged is which we have no admitted precedent. It is argued sufficiently made out by these averments. But the act that the policy is a wager policy. It is quite true, described was not proven. There was neither expec that beyond the guaranteed minimum they were contation nor intention on the part of the plaintiff to tingent, and dependent upon the condition of the prove it. This we know from the opening of the dis market, or even possibly upon the will or choice of trict attorney. The case he presented and the evi Ellis & Co. in the reasonable control of their business. dence he offered, all tended to show that the defend.
That firm was not bound to pay except upon oil ant did not commit the act charged in the indictment, manufactured and sold; and might limit both, or be but did commit the act described in the second alter compelled by the market to limit both, to a producnative ef the statute, viz., “obtaining property from tion yielding no royalties beyond the guaranteed minthe possession of the true owner by color or aid of imum; and so it is said, the plaintiff had no fixed or false representations or pretense, or a false token or definite right to royalties beyond such minimum, no writing." And such is the only claim now made by assurance of their existence, no power to compel or the learned district attorney. He says in his printed demand their being, and could not be said to have lost points glven to us as an answer to the appeal: “On what it neither possessed nor had the absolute right the trial it was proven that on the third day of Feb to possess. But a further fact in the case establishes ruary, 1885, the defendant obtained from Ilus F. Car more definitely the plaintiff's risk and loss, and the ter a quantity of carpets of the value of about $700; direct causative connection between that loss and the that he obtained such carpets by means of false and fire which injured the works. The license held by fraudulent representations." The accused could not Ellis & Co. to use the plaintiff's patent was an exclufail to understand from the indictment that he was give one, and the earning power of that patent was charged with the crime of grand larceny. In that re thus narrowed to the business of Ellis & Co. If the spect the Code was complied with. It stated also a latter did not continue their business, and so preserve particular act as constituting the crime. In that re- the fruitfulness of the patent by reason of some fault spect also the Code was complied with. The diffi- | of their own, or from a cause for which they were reculty is tbat the act stated was not proven, and that ponsible, the exclusive character of the license ended the act proven was not stated. The objection that and the patentees were at liberty to transfer the right the proof varied from the crime charged in the in- | to others, and thus secure the profits of their inven
tion. But if the business of Ellis & Co. was lessenedtional 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 continue; 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 carpen ters, 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 ot Rohrbach v. lusurance 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 80
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, he 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 iuto 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 bere 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 flues conpatent, which royalties are guaranteed to amount to
structed of inflammable materials, and extending
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 sitducing 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-PAROLfendant. 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. Oot. 4, 1887. Na- | party, the defense was breach of covenant of sea.