Manley v. The Insurance Company of North America. chased the property, indorsed an approval of the assignment, dated December 14th. It may fairly be inferred that at the time the policy was assigned to Chamberlain, he and Manley contemplated obtaining the consent of the company to it, and application was made to the agent for such consent. It may be that the language of the condition requires that the consent of the company should precede the assignment. If, however, an assignment is made, not to be effective until the consent or approbation of the company is obtained, it will not be a breach of the condition. I think also that it is a perfect answer to this objection that the instrument was reformed with the assent of all the parties, and, as put in evidence upon the trial, the assignment was limited to the barns unburnt. As to the alleged sale or transfer of the property insured, the evidence shows that Manley, by an instrument in writing, dated February 23d, 1867, sold and conveyed to Porter Welch one undivided half of his interest in the contract for the Howe farm. I regard this as a sale of the one undivided half of the property insured. No consent of the company was obtained. What effect had this sale and transfer upon the rights of the plaintiff? Did the plaintiff lose all right to recover anything? I think he did not. He can recover to the extent of his loss, assuming that he remained the owner of the undivided half of the property insured. It is never necessary to insert in a policy of insurance the condition that it shall become void in case of a sale or transfer of the insured property without the consent of the company. Such is the legal effect in the absence of any condition. The contract of insurance is personal and is for indemnity, and if the assured has transferred the subject of the insurance before loss, he has no longer any interest in the property. A party obtaining insurance must have an insurable interest or the policy will be void from the beginning, and as the contract is one of indemnity, he must have an interest in the thing destroyed at the time it was destroyed, otherwise he has sus tained no loss. These are elementary principles in the law of insurance. Manley v. The Insurance Company of North America. In this case the question is not made that Manley had no insurable interest. He held the property under a contract by which Chamberlain agreed to sell and he agreed to pur chase, and this gave him an insurable interest. See Etna Fire Ins. Co. v. Tyler (16 Wend., 385). Chancellor WALWORTH, in this case, says: "If the assured sells the property and parts with all his interest therein before the loss happens, there is an end of the policy, unless it was assigned to the purchaser with the assent of the company; or if he retains but a partial interest in the property, it will only protect such insurable interest as he had in the property at the time of the loss." (Page 397.) The counsel for the defendant cited in his brief Tillou v. The Kingston Mut. Ins. Co. (1 Seld., 405). The policy was issued to the three plaintiffs, who were partners; they assigned it to one Ketchum as security, with the consent of the company, and, after this, one of the partners sold and transferred his interest in the insured property to his copartners. In the Court of Appeals, Foor, J., said: "The case of Murdock v. The Chenango Co. Mut. In. Co. (2 Coms., 210), is decisive against the claim of the respondents to recover in this action for their own benefit.". The opinion then proceeds to show that a recovery was proper for the benefit of the assignee, Ketchum, to the amount of his interest. The case referred to in Comstock was this: Two tenants in common were insured, and one of them, before the loss, conveyed his interest in the premises to the other, and it was held that they could not maintain a joint action upon the policy. The reason for this decision will readily occur to all well informed as to the rules touching the parties to actions at law. As one of the plaintiffs had divested himself of any interest, he had no cause of complaint; as to him the policy was void. As the contract was with the two jointly, and as it was a rule that all joint contractors, if living, must be joined in the action, the action could not be maintained in case one of the joint contractors, obligees or promisees had released the cause of action. The action was gone as to all Manley v. The Insurance Company of North America. of them. These rules were not so dangerous and destructive to men's rights as we should naturally suppose, as there were other rules which rendered the cases rare in which the rule extinguishing the action would apply. Choses in action were not assignable, so as to permit the assignee to sue in his own name. If the cause of action was assigned, the action could be maintained in the name of the parties to the contract for the benefit of the assignee. But if one of two, or more, to whom a contract was made jointly, released the cause of action, before it had been assigned, it was gone as to all. By the insurance law, when the assured sold the thing insured, the contract as to him was void; there was no longer any contract with him, and he could not be a party to the action. In the case in Selden, supra, he was permitted to be a party because he sold and transferred his interest after the assignment, and the law would not permit the assignee to be prejudiced thereby. It will at once be seen that these cases, and the principles upon which they were decided, have no application to the case we are considering. The contract in this case was with Manley alone. He transferred a portion of his interest in the property, and as to that portion he ceased to have any right. Before taking leave of Murdoch's case, I think I may be pardoned for suggesting that probably no such decision would now be made, after considering the really valuable reforms made by the Code touching parties to actions, and the rendition of judgments. The case was decided in the Court of Appeals, in 1849, under the old system, and without any reference to the Code. Now, by the Code, it is no objection to a recovery that too many persons have been made plaintiffs. If one of the plaintiffs proves a good cause of action, he is entitled to judgment; and as a sale by one of two or more persons jointly insured renders the policy void as to him, because he has ceased to have any interest in the property; it should be held that the contract remained good as a contract solely with those who remained owners at the time of the loss. It was not indeed decided in Murdoch's case McNall v. McClure. that the action could not have been maintained by the plaintiff, who had not transferred his interest, and that he could not recover to the extent of his share of the loss. (See Hoffman & Place v. Etna Fire Ins. Co., 32 N. Y. R., 405, and cases cited.) In the present case Manley was entitled to recover the amount of his loss, not exceeding the amount of the risk taken. The risk taken upon the house was $3,500, and upon each of the barns $500. The evidence showed that the house was worth from $8,000 to $10,000, and the barn destroyed $1,500. Half of each of these sums exceeds the amount of the risk taken, and the amount recovered. There is in this regard no error in the judgment. It is not necessary, in the view I have taken, to consider the question of waiver by the company of any objection to the sale by Manley of half of his interest in the contract to Welch. The counsel made an oral point on the argument that the preliminary proofs do not show who were the respective owners at the time of the loss, as required by the policy. It appears from the case that it was admitted on the trial that the proofs required by the policy were made and delivered to the agent; besides, I think they were sufficient. The judgment should be affirmed. STEPHEN MCNALL, Appellant, v. DAVID MCCLURE, Respondent. (GENERAL TERM, EIGHTH DISTRICT, MAY, 1869.) On the trial of an action before a justice of the peace, for trespass by defendant's cattle, triers were appointed, and a juror was, on their decision, excused for favor; the defendant then asked that all the jurors summoned might be tried by triers. The justice examined them separately, under oath, and they testified that they believed the law in relation to cattle running on the highway to be a good law. No other objection to their competency appearing,-Held, the justice properly refused to submit the testimony of the jurors to triers. 'T'he case of Smith v. Floyd (18 Barb., 522) distinguished. Proceedings in Justices' Courts are to be liberally reviewed, and the judg ments therein will be sustained unless manifestly erroneous. McNall v. McClure. APPEAL from judgment of Cattaraugus County Court, reversing the judgment of the Justice's Court. The action was for trespass by defendant's cattle upon the plaintiff's premises. Issue was joined, by answer denying complaint and averring the vote of the town that cattle may run in the highway, etc., and on the day of trial a venire was issued at the instance of the defendant. The name of one Graves was the first drawn as a juror, and the defendant asked him if he had heard the suit talked about, and he said he had somewhat, though not much; that he had expressed an opinion that defendant's cattle ought not to run in the highway. Thereupon two jurors, to whom no objection was made, were sworn as triers to decide as to the competency of Graves. They heard the evidence and decided that he was not competent, and he was told by the court that he was excused. The defendant then asked to have all the jurymen tried by triers. The court swore each and every one of them separately; asked if they had heard the matter talked of. They all said they knew nothing about the suit, but believed the law in relation to cattle running at large in the highway to be a good one. The defendant insisted that inasmuch as they believed the law to be a good one, they were incompetent jurymen. The court held that the question of the validity or justice of the law was not a matter for the triers to decide upon, and that that being the only question raised by the defendant, they were competent, and the triers were accordingly discharged, the defendant objecting thereto. A jury was impanneled and sworn, and the canse was tried, and there was a verdict for the plaintiff, etc., etc. S. S. Spring, for plaintiff. David McClure, for defendant. Present-MARVIN, LAMONT, and BARKER, JJ. By the court-MARVIN, P. J. I think the County Court ought not to have reversed the judgment. What is the quesLANSING VOL. I. 5 |