Robbins v. The Firemen's Fund Insurance Company of San Francisco. and that the policy never attached to any property in his possession. In this case, however, it was proved, and not denied, that the plaintiffs were factors for the Watch Company alone, and that, for many years, they had been exclusively factors for that company; and it is not claimed that they contemplated becoming factors for any other person. Property held on commission being specified in the contract, and, at the time of the execution of the contract, and continuously thereafter, the plaintiffs having had in their store, on commission, the property of no one but the Watch Company, it follows, that the policy, so far forth as it relates to property on commission, attached to the property of the Watch Company, or to no property. The effect of the parol testimony would have been to alter the express and unambiguous terms of the written contract. 2d. Did the several policies upon the Watch Company's property constitute double insurance, and were the four policies which were issued in the name of the plaintiffs upon said property, contributory with the policies upon the same property in the name of the Watch Company? This question has been very fully and ably argued by the defendant's counsel, but I am of opinion that the principles which govern its decision have been authoritatively established in the Baltimore Warehouse Co. case, cited supra, although it is obvious that the question which is presented by the facts of this case was not before the Supreme Court. The Warehouse Company held in its warehouse goods belonging to seven depositors. A large portion of this property was destroyed by fire. Previously to, and at the time of, the fire, the company held a policy for $20,000 in the Home Insurance Company, and another policy, substantially in the same form, for $10,000, issued by another insurance company. four of the consignors the Warehouse Company had made advances. Three of the consignors to whom advances had 'been made had taken out policies, also in force at the time of the fire, in their own names, covering specific portions of said property, and all of the last mentioned policies, except To Robbins v. The Firemen's Fund Insurance Company of San Francisco. two, were made payable, on their face, to the Warehouse Company, in these words: "Loss, if any, payable to the Baltimore Warehouse Company," and were delivered to and held by it as additional security for advances, at the time of making said advances. The insurance company asked the Circuit Court to charge, that "the policies obtained by Hough, Clendening & Co. upon their cotton, and made payable to the Baltimore Warehouse Company, being for a different assured, were upon a different interest from that covered by the policy now in suit, and the latter is not bound to contribute to any losses for which the former are liable." The Circuit Court was of the opinion that the policies in the name of the Warehouse Company covered only its interest in the property contained in the warehouse, and charged that it was entitled to recover for two-thirds of all loss or damage to the property upon which it had made advances, to the extent of its advances on the same, less the amount which the jury should find to be due from the special policies on cotton on which the plaintiff had made advances, made payable to the plaintiff, each of said special policies contributing to the loss on the cotton insured by it, with the general policies held by the plaintiff. The jury found for the plaintiff, and the insurance company brought a writ of error. The Supreme Court said: "The most important question in this case relates to the proper construction of the defendants' policy of insurance. It is contended, on their behalf, that it covered only the Warehouse Company's interest in the goods contained in the warehouse. If this is the true meaning of the contract, the instruction given by the Circuit Court to the jury was erroneous. If, on the other hand, the policy covered the merchandise itself, and not merely the interest which the Warehouse Company had therein, there is no just ground of complaint of the charge of the Circuit Judge." After deciding that the policy covered the merchandise itself, the Court proceeds as follows: "Without pursuing this discussion further, we have said enough to vindicate our opinion, that the policy upon which this suit was brought covered the VOL. XVI.-9 Robbins v. The Firemen's Fund Insurance Company of San Francisco. merchandise held by the Warehouse Company on storage, and not merely the interest of the bailees in that property. It follows, necessarily, that there was double insurance. The policy issued to the Warehouse Company, and those obtained by the depositors of the merchandise, covered the same property, and they were for the benefit of the same owners. The persons assured were the same; for, if the policies taken out by Hough, Clendening & Co. were upon their goods, notwithstanding the memorandum that the loss, if any, was payable to the Baltimore Warehouse Company, as may be conceded was the case, so was the policy now in suit. The insurers are liable, therefore, pro rata, each contributing proportionately." It is true, that the Court did not pass upon the question whether the policy in suit contributed with the policies which were not made payable to the Warehouse Company, for that question was not before the Court. The only point which the Court decided, in this part of the case, was, whether two policies upon the same interest in the same property, one issued to the bailees and owners and made payable to the bailees, and the other issued to the bailees, constituted double insurance. The principle upon which the Court placed its decision in favor of double insurance is, that these two classes of policies covered the same interest in the same property, and were for the benefit of the same owners. Where these two facts exist, double insurance is the result. Lord Mansfield defined double insurance to be, "when the same man is to receive two sums instead of one, or the same sum twice over for the same loss, by reason of his having made two insurances upon the same goods on the same ship," (Godin v. London Assurance Company, 1 Burr., 489, 495;) but it is not essential that the respective policies should be issued to the same persons. If the policies, though issued to different persons, cover the same interest, and inure to the benefit of the same owner, the insurance is double. If the policies are issued to different persons, in respect of different rights, as, for example, to mortgagor and mortgagee, or do not inure to the benefit of the same owner, the insurance is Robbins v. The Firemen's Fund Insurance Company of San Francisco. not double. And here consists the distinction between the case of North British Ins. Co. v. London Ins. Co., (L. R., 5 Ch. Div., 569,) which is relied upon by the defendant and the Warehouse Co. case. In the English case, Barnett & Co., wharfingers, who, by the custom of London, or of the trade, were responsible to their consignors, like common carriers, and were liable to make good loss by fire, effected insurancein their own name, to a large amount, on property, "the assured's own, in trust or on commission, for which they are responsible," in their warehouse. The policies contained a contributory clause. A fire destroyed property of one of the consignors, who had insured in their own names in other companies. Barnett & Co. were paid their insurance and paid the consignors the amount of their loss. The wharfingers' insurers claimed contribution from the consignors' insurers, and whether the whole insurance was double and contributory was the question in an equity suit between the two sets of insurers. It was held that the insurance was not double. The different Judges place the stress of their argument upon the fact, that the wharfingers were liable as common carriers, and construe the contract to be an insurance to protect them against loss arising from this liability. The two classes of insurance were considered to be upon different interests, although upon the same property. In the Baltimore Warehouse case the Court gave a different construction to the con tract. It results, then, from the fact that the Robbins & Appleton policies, so far forth as they related to the Watch Company's property, were upon the same property which was insured in its name, and from the further fact, that the two sets of policies upon the Watch Company's goods were for the benefit of the same owner, (for, as to the insurance upon the property of the Watch Company, in the plaintiffs' policies, they were trustees for the owner,) that the insurance was double and contributory. The plaintiffs' policies upon the Watch Company's property present the ordinary case of insurance, by a factor, of goods in his possession belonging Robbins v. The Firemen's Fund Insurance Company of San Francisco. to another person. Such insurance, either directly or indirectly, inures to the benefit of the owner. In this case, the insurance was directly for the benefit of the owner, as the factors had no charges or liens upon the goods. The fact that the plaintiffs' policies covered goods which were their own, and were not in the Watch Company's policies, does not take the insurance upon the company's goods out of double insurance, for, this circumstance does not alter the fact that the insurance upon the Watch Company's-goods was entirely for its benefit. The two classes of property were perfectly distinct and separate, and the ascertainment of the amount due upon account of the Watch Company was merely a matter of arithmetical computation. The defendant also asks that a new trial should be granted upon the ground that the verdict was contrary to the evidence. Two questions of fact were submitted to the jury: 1st. Was the insurance unauthorized? 2d. If unauthorized, was it adopted? The jury found for the plaintiff's generally. In the present condition of the litigation of the plaintiffs with their insurers, (another suit now awaiting trial in this Court,) I do not think it advisable to discuss the questions of fact, except simply to say, that the state of the evidence was not such as to warrant the granting a new trial. The motion for a new trial is denied. ant. Leon Abbett, for the plaintiffs. Joshua M. Van Cott and John Winslow, for the defend |