After a loss has occurred, the right of the insured to indem nity is vested and fixed; and this right may be assigned for value, so as to give an equitable claim to the assignee, without the consent of the insurers. Policies against fire contain a provision that an assignment of the property, or of the policy, shall avoid the policy. So, generally, it is hardly worth while to inquire what right an assignee, without consent, would acquire at common law, or in equity, where there is no such provision. A dissolution of the partnership before loss, and a division of the goods, so that each partner owned distinct portions, was held to be in violation of a condition against "any transfer or change of title in the property insured." A conveyance by one insured, intended to secure a debt, will be treated in a court of equity as a mortgage, and therefore it does not terminate the interest of the insured. A contract to convey is not an alienation. Nor is a conditional sale, where the condition must precede the sale, and is not yet performed. Nor is a mortgage, not even after breach, and perhaps entry for a breach, and not until foreclosure. Nor selling and immediately taking back. Sometimes alienation by mortgage is directly prohibited. If several estates are insured in one policy, and one or more are aliened (or conveyed away), the policy is void as to those only which are aliened. If many owners are insured in one policy, a transfer by one or more to strangers, without the act or concurrence of the other owners, will avoid the policy for only so much as is thus transferred. In practice, care should be taken to have all such transfers regularly made and notified, and the consent of the insurer obtained, fully authorized, and duly indorsed or certified, and all the rules or usages of the insurers in this respect complied with. SECTION IX. NOTICE AND PROOF. WHERE the policy requires a certificate of the loss, the pro duction of it is a condition precedent to any claim for payment. And it must be such a certificate as is required; but a substan. tial compliance with its requirements is sufficient. So, too, if the notice is to be given forthwith, there must be no unreasonable or unnecessary delay. And all the circumstances of the case are considered, in determining whether there was or was not due diligence. Where a certificate is required to be furnished "as soon as possible," it is still sufficient if it be furnished within a reasonable time. But where the fire took place in November, and the account of loss was not furnished till the March following, it was held not to be a compliance with the conditions. Generally, this is a question for the jury. In fire-policies, as the premises may be supposed always open to the inspection of the agents of the insurers, a general notice of the fire will be enough. SECTION X. ADJUSTMENT AND LOSS. INSURERS against fire are not held to pay for loss of profits, gains of business, or other indirect and remote consequences of a loss by fire. We do not know, however, why profits may not be expressly insured against fire, where it is not forbidden by, or inconsistent with, the charter of the insurers. There is one wide difference between the principle of adjustment of a marine policy and of a fire-policy. In the former, if a proportion only of the value is insured, the insured is considered as his own insurer for the residue, and only an equa! proportion of the loss is paid. Thus, if, on a ship valued at $10,000, $5,000 be insured, and there is a loss of one-half, the insurers pay only one-half of the sum they insure, just as if some other insurer had insured the other $5,000. But in a firepolicy, the insurers pay in all cases the whole amount which is lost by fire, provided only that it does not exceed the amount which they insure. Most of the fire-policies used in this country give the insurers the right of rebuilding or repairing premises destroyed or injured by fire, instead of paying the amount of the loss. If, under this power, the insurers rebuild the house insured, at a less cost than the amount they insure, this does not exhaust their liability; they are now insurers of the new building for the difference between its cost and the amount they have insured. And if the new building burns down, or is injured while the policy continues, the insured may claim so much as, added to the cost already incurred, shall equal the sum for which he was insured. It may be important to add, that, under our common mutual policies, the insured will also be liable for assessments for losses after the destruction of his building by fire, during the whole term of the policy. There is no rule in fire-insurance similar to that which makes a deduction, in marine-insurance, of one-third, new for old. Still, the jury, to whom the whole question of damages is given, are to inquire into the greater value of a proposed new building, or of a repaired building, and assess only such damages as shall give the insured complete indemnity. Where insurers reserved a right to replace articles destroyed, if the insured refused to permit them to examine and inventory the goods that they might judge what it was expedient for them to do, such conduct on the part of the insured would be evidence to the jury of great weight, to prove an overstatement of loss. I have not thought it would be useful to give Forms of various policies. Applicants never make them, as they are always furnished by the insurance companies; each one having its own form, and using no other. But the following Forms, of immediate notice of loss, of a later and fuller statement under oath, with a magistrate's certificate, and assignments of policies, may be found useful. They must be all adapted, in practice, to the peculiar circumstances of each case. (or otherwise describe the location), whereon I am insured by you, by your policy, No. dollars. I have not yet the sum of learned and do not know, in what way the fire was caused; but as soon as I am able, I will give you further information on the subject. (If the insured or his agent knows, or has reasonable cause for supposing, how the fire was caught, he should say so, and state what particulars he can.) The house was wholly (or partially) destroyed by fire; and I shall claim a payment from you under your policy. Written and sent this day of Witness to the signature and sending. (Signature of Witness.) in the year (Signature.) (Seal.) Some insurance companies, and, indeed, the express provi sions of some policies, require that a sworn statement of the facts and circumstances of the loss, and the particulars of the claim, be given to the insurance company, with the certificate. of a magistrate. I do not know that this course might not be always prudent. The form in which it is done must vary in each case, and be adapted to the peculiarities of that case, But the following Form will generally be a safe guide. .Insurance Company. Insurance Company, by their policy numbered dollars against loss or caused me to be insured in the sum of damage by fire to the following-described building; that is to say (here describe or designate the building sufficiently to show clearly where and what it was, taking the description from the policy, but not copying it at length), Now, I, the said (name of the assured) having been solemnly sworn, do depose and say,— I. That on the hours of and day of now last post, between the a fire broke out in said building, whereby the same was greatly damaged (or destroyed), and the said fire was, according to my best knowledge and belief, caused by (here set forth the causes so far as they are known, or supposed on reasonable grounds), and I aver that the said fire was not caused by me, or by my design and occurrence, or with any previous knowledge on my part, or in any manner attributable to me or to my agency direct or indirect. 2. That I was interested in the said property in the following manner: that is to say (here say whether the insured owned the property himself, or was a tenant of it, or a landlord, or mortgagor or mortgagee, or trustee, or how otherwise he was interested). 3. That there was no other insurance against fire of the said property lor, if there was any other, state what it was). 4. That the occupants of the building at the time of the fire were, so far as is known to me, the following persons (set forth the names of the occupants, the parts of the building occupied by each one, and the purpose for which it was occupied). 5. That the actual value of the building in dollars at the time of the fire, was, according to my best belief and judgment, dollars. If the property was personal, as goods, furniture, or the like, say, as may appear by the schedule annexed.) 6. That the whole of said value was lost by the fire; and being more than the sum insured thereon, I now claim of said insurance company said sum of dollars. (Or if the building was injured, and not destroyed, then say that so much of the value-stating the amount of said building was lost by the fire, inasmuch as the building, if repaired, cannot be restored to as good condition as before, for a less amount than that sum.) Witness my hand at in the year this day of (Signature.) (Certificate to be appended to the foregoing.) STATE OF COUNTY OF SS. (name of the magistrate) a justice of the peace in and for said county (or what else may be his office), dwelling near to the property above mentioned, in the town (or city) of have investigated the circumstances attending the said fire, and am personally acquainted with the said (name of insured), whose character is good; and I believe that the above statement to which the said (name of insured) has made oath in my presence is true; that the loss cannot be imputed to fraud or misconduct on his part; and that he has suffered by the fire a loss of dollars. I am not in any way interested in the said property, or in the said policy, or any claim under the same. In Witness of all of which I have hereunto set my hand and my seal (of office, if he has an official seal), at in the year this day of (Signature of Magistrate.) (Seal.) (104.) I Assignment of a Policy to be indorsed Thereon. (name of insured) insured by the within policy, in consideration of a dollar paid to me by (name of the assignee) and for other good con siderations, do hereby assign, and transfer to the said (name of the assignee) this policy, together with all the right, title, interest, and claim which I now have or hereafter may have, in, to, or under the same. |