Dix et al., use, etc., v. Mercantile Ins. Co. Same v. Chicago City Ins. Co. of the party in whom the legal interest in the contract is vested. 1 Ch. Pl. 3. A party suing, who, by his own showing, by the averments in his declaration, has no interest whatever in the cause of action, never can be permitted to recover in an action at law. We think a case cannot be found decided in a court of law, where a person having no legal interest in the subject matter of the action, has been allowed to maintain an action at law alone or with others. It is impossible that he can, since, by his own showing he has nothing for which to sue. All the interest of one of the parties had passed out of him. 16 Peters, 501. But it is insisted, that by another rule of law equally fundamental, a suit on a contract must be brought in the names of the parties contracting, and therefore this action is properly brought, the contract of insurance having been made with the plaintiffs. This is all very well, very true, and would be decisive, did not the declaration disclose the fact of want of interest. Had the declaration been silent on the fact of assignment, and it might well have been-it would be good without such an allegation, there can be no question of a proper case being stated, against which the defendant by plea should defend. But the declaration itself showing the nakedness of the case-being in fact a felo de se, the defendant could do nothing but demur, for by so doing-by admitting the facts as the plaintiffs have stated them, the case for the defendants could not be better made out. Why disclose in the declaration, the fact of the assignment by one of the plaintiffs to the others? What was expected by the pleader to be gained by it? Would it not have been better, to let that matter of assignment, and the question growing out of it, come from defendant by plea? Could not the rights of the two partners be fully protected, in the usual mode of declaring in the name of those with whom the contract was made but for the use of the parties really entitled? or why say anything about it in the declaration? As it is stated, the case made by the declaration destroys itself. It is felo de se. The declaration showing that one of the plaintiff's had parted with his interest in the property insured, before the loss accrued, puts an end to the case, on another principle well established and universally recognized, and that is, upon a policy against loss by fire, no recovery can be had unless the insured has an interest in the property insured at the time of the loss. Now without insisting upon the first objection, this must be fatal and must dispose of the case. Who were the parties insured? The policy shows they were Sinclair, Dix and Harris. Who had the interest at the time of the loss? Dix and Harris. Sinclair then, had no ground of recovery when suit was brought Dix et al., use, etc., v. Mercantile Ins. Co. Same v. Chicago City Ins. Co. —having no interest in the property he could not be damaged by its loss. But independent of all this, this condition was annexed to the policy:" And in case of any transfer or change of title in the property insured by this company, or of any undivided interest therein, such insurance shall be void and cease." Here was a transfer by one of the insured to the others, of his undivided interest in the property insured. There is a change of title to an undivided interest in the property. At the date of the policy it belonged to Sinclair, at the time of the loss it was the property of Dix and Harris, so that there was a complete transfer and change of title to this undivided interest. It is however, replied to this, that the reason on which this condition is based, is to prevent parties insured from transferring the property to strangers and thus introducing into its care and management, parties not known to the insurers. Much argument, in support of this position, has been advanced, and cases cited, supposed to sustain it, which are by no means satisfactory. A contract, as well of insurance, as in regard to any other matter, must be interpreted according to the intention of the parties making it, and that to be gathered from the language and terms employed, and the objects contemplated by it. The intention of the company was manifestly, as urged, that no strangers should come into the management and care of this property without their consent. Knowing the parties with whom they were contracting, relying upon the fidelity and circumspection of each and every one of them, they were willing to take the risk at the premium stipulated. It was an object of the first importance with them, to secure for the property, the guardianship and care of faithful and trust-worthy men, and for this they were willing, for the premium, to entrust the property to the care of Sinclair, Dix and Harris, but not to the care and watchfulness of Dix and Harris alone. Is it not plain that the assurers may be as greatly prejudiced by removing one, to whom with others, they had entrusted the guardianship of valuable property, as by the introduction of a stranger? The one removing from the concern may have been the very one, on whose vigilance, fidelity and care the greatest share of confidence was reposed, and by so removing, the hazard is increased to the assurer without any corresponding increase of premium. This is neither just nor equitable. The plaintiffs therefore, have no right to say, that it was against "the coming in of strangers," this condition was aimed. The assurers have bargained and paid, for the care and watchfulness of each and every person whose property they have insured, and they have an undoubted Davis v. Michigan Southern and Northern Indiana Railroad Co. right to hold them to a strict observance of the contract, and we have no right to say, when it is agreed between them and the assured, that a transfer or change of title to the property or to an undivided part of it shall make the policy void, that they were stipulating against a transfer to strangers only. The terms used are too broad for that, and the object of the condition would be defeated by so restricting them, as we have endeavored to show. There is a vast difference between the sale by one partner of his entire interest in a partnership concern, and a change simply in the relative shares in the concern, for in the latter case, the watchfulness and care of the partner which was bargained for, still continues, whilst in the former it is forever gone. We have no doubt upon any of the positions we have here assumed, and consider any reference to adjudged cases on the point, or comments on them, wholly unnecessary. Howard v. The Albany Insurance Co., 3 Denio, 301, and Murdock v. The Chenango County Mutual Insurance Co., 2 Comstock, are to the point. 1. The plaintiffs have by their own showing defeated their case. 2. One of the plaintiffs by the showing of the declaration, had no insurable interest at the time of the loss. 3. The transfer and change of title by one partner to the others, avoided the policy. The judgment of the Circuit Court is affirmed. Judgment affirmed. 22 278JOHN DAVIS, Plaintiff in Error, v. THE MICHIGAN SOUTHERN 108a 4419 AND NORTHERN INDIANA RAILROAD COMPANY, Defendant in Error. ERROR TO COOK COUNTY COURT OF COMMON PLEAS The delivery of a baggage check by a railroad company, is prima facie evidence that the company has the baggage. If on a change of passage from one railroad to another, the agent of the road does not find the baggage which is checked, he should give immediate notice to the owner, or the company owning the road on which the passenger embarks, will be held liable. The owner of lost baggage should not be permitted to prove the value of the articles in which it is packed. So of other articles, the value of which may be established from description. A revolver is included in personal baggage. Davis v. Michigan Southern and Northern Indiana Railroad Co. A party should not be allowed to recover for an unreasonable amount of money lost with his baggage. If he has money beyond what is necessary for his personal expenses in his baggage, the company should be notified. A trunk is not a proper place for a passenger on a railroad, to carry money for his traveling expenses. The testimony of a party, who from time to time, increases his demands for the value of the lost baggage, should be received with caution. THIS was a suit against defendant as common carrier of passengers and baggage, the suit being for baggage of plaintiff, lost by defendant. Plea, general issue; joinder, and jury waived, and trial had by court. The plaintiff introduced the railroad checks of defendant, Nos. 2 and 991, and proved that they were the evidence of baggage deposited with the defendant for transportation, and plaintiff was then sworn as witness in the case, and proved contents of trunk and carpet bag-being baggage lost-and the value thereof, amounting in the aggregate to $915.25. Which testimony was objected to by counsel for defendant. On cross-examination, plaintiff as witness, swears, that the contents of said trunk and carpet bag, or the value of the articles, was not made known to defendant or its agents; that he never saw his baggage after leaving Dunkirk; that about twelve miles beyond Toledo, on the Ohio, Grafton and Toledo road, the two checks above mentioned, were given him in exchange for checks received at Dunkirk; the two packages, trunk and carpet bag, were found missing at Chicago; saw agent of defendant at Chicago, and made application for my baggage, and said to the agent (Mr. Gray), that if he would give me my diplomas, (medical), that I would let the rest go; mentioned the money to Mr. Gray, when he took a memorandum of the contents of the lost baggage. Three trunks were alike in general appearance, one being smaller than the others; the contents of the trunks not lost, were of the value of fifteen hundred dollars. The defendant introduced George M. Gray as a witness, who testified that he was the general passenger agent of defendant, and has so acted for five years past; that we employ agents to go on board cars of Cleveland and Toledo Railroad, who exchange our checks for the checks of that company, with those passengers who come this side of Toledo. This check, No. 2, (check produced by witness) is the duplicate of the one held by the plaintiff; we have also the check for which it was given, belonging to the Cleveland and Toledo Railroad Company, also the strap check, No. 991, corresponding with the other check of the plaintiff; these checks were found at Toledo; Dr. Davis called on me and produced his checks; said he had lost a trunk in which were some diplomas, and family relics; said nothing Davis v. Michigan Southern and Northern Indivna Railroad Co. about gold or valuable articles in the three first interviews, afterwards he claimed that there was gold and valuable clothing; never said he had gold or money of any kind in the trunk at the first interview. We sent to Toledo for the baggage, and used all diligence to find it. E. D. Robinson, witness for defense, testified to being ticket agent, and that the tickets of defendant for three years past have had printed on the backs of each ticket the words, "This ticket entitles the holder to not over eighty pounds of baggage, but not at any rate exceeding in value $100, unless notice is given, and an extra amount paid at double first-class rates," as upon this ticket now shown the court. Plaintiff, by his attorney, objected to the introduction of this ticket and the testimony in relation thereto. Overruled by the court, and exception taken. Witness testified further, that similar language and to the same import was on the tickets sold over the New York and Erie Railroad to Chicago; this has been the practice for more than two years. To all of which testimony on part of defendant, objections were made by plaintiff, which were overruled by the court, J. M. WILSON, judge, who tried the case. And afterwards, to wit: At the February term of said Court of Common Pleas for the year 1857, the judge of said court then and there rendered judgment in favor of plaintiff, for one hundred dollars and costs of suit, a jury having been waived. Whereupon plaintiff, by his attorney, enters motion for new trial, on ground of improper testimony being admitted, and that judgment was against evidence, which motion was overruled. The plaintiff below brought the case to this court. SHUMWAY, WAITE & TOWNE, and J. W. CHICKERING, for Plaintiff in Error. B. C. Cook, for Defendant in Error. BREESE, J. The delivery of a check to a passenger is intended to relieve him from all care and superintendence of his baggage while on its journey, and devolves such care upon the agents of the several roads over which it passes, and must be considered as prima facie evidence of the delivery of the baggage. On the exchange of checks, before reaching Toledo, if the baggage master could not find the trunk and carpet bag, which it seems were connected together and marked with one check, on the Cleveland cars, he should have given immediate notice to the owner from whom he received the check; not having done so, |