#### John Moadinger *versus*The Mechanics’ Fire Insurance Company of the City of New-York.

The terms “stock in trade,” when used, in a policy of insurance, in reference to the business of a mechanic, (a baker for instance,) include, not only the materials used *by*the mechanic, but the tools, fixtures, and implements necessary for the carrying on of his business.

The terms “false swearing,” (it seems,) as used in the conditions annexed to a policy, mean an intentional and corrupt mis-statement, under oath, for the purpose of proving the existence of property not lost, or of overcharging the property destroyed, or concealing that which was saved.

It seems, also, that silver spoons, and articles of a like kind, used by a family upon ordinary occasions, are not necessarily excluded from the risk by the 8th condition, relative to *plate,*annexed to the policy, but may be included in the terms “ household furniture.” Q.uery,—whether family portraits are excluded by the same condition as *paintings,*to be specified in tlio policy ?

Where the jury adopt the plaintiffs statement, as to the loss furnished by the preliminary proofs, without sufficient evidence to support it, the court will grant a new trial, and compel the plaintiff to *prove*the amount of his loss.

The defendants insured the plaintiff *“*one thousand dollars on “ his stock in trade, as a *baker,*and on household furniture, contained in a framed dwelling-house and bake-house, front and “ rear, situated at No. 17 Thomas-street,” for one year from the 18th day of March, 1828 : and this action was brought to recover the amount of a loss sustained by a fire which took place on the 12th of September following.

The cause was tried before the Chief Justice. At the trial, two questions were raised by the counsel for the defendants ; one as *491*to the*extent of the plaintiff’s *right*of recovery, and the other as to the amount of his loss. The plaintiff contended that the words *“*stock in trade,” covered not only the flour used by him in his bake-house, but also all the implements and fixtures belonging to , his business,—such as bread troughs, benches, pans, stoves, scales and weights, sieves, knives, baskets, &c. &c. He also included in his schedule of stock, a horse, waggon and harness, used in the delivery of bread to his customers; and he called several bakers as witnesses, who testified that all the articles included in the plaintiff’s schedule, were considered, by bakers, as “ stock in trade.”

It appeared from the testimony, that thirty Barrels of flour, included in the schedule of loss, were stored, at the time of the fire, in a *shed*leading from the bake-house to the front house, and the defendants insisted that these were not covered by the policy.

Among the items of household furniture, for the loss of which the "plaintiff claimed, were included five portraits, with their frames, twelve silver table-spoons, twelve tea-spoons, and a silver sugar-tongs. These articles, the defendants contended, were excluded from the risk by the 8th condition annexed to the policy, which provides that “jewels, plate, medals, or other curiosities, paintings and sculpture, shall not be included in any insurance, unless specified in the policy.”

It appeared also, that the plaintiff had duly presented his preliminary proofs of loss, but his testimony, at the trial, as to the amount of his loss, the articles destroyed, and their value, was very general and vague. Indeed, the evidence was strong to show, that the household furniture was saved; and the defendants insisted, that the plaintiff had overrated his loss, both as to the quantity of the articles destroyed, and as to their value ; that he had brought himself within the provisions of the 9th condition annexed to the policy, as "to “ false swearing,” and that there was no proof upon which the jury could rest their verdict.

The Chief Justice charged the jury, that by the terms “false swearing,” as used in the conditions of the policy, was meant an attempt to defraud the company, by swearing intentionally, and *492with had motives, to the existence of property which the insured *'*a x ^ never lost, or by greatly overcharging that which was destroye¿l3 ov not acknowledging that which had been saved. If in there had been such “false swearing,” he charged the a verdict for the defendants. With regard to the Items of household furniture, excluded by the defendants from the loss, he remarked, that although *“*plate and- paintings” were not covered by the policy, unless specified, yet he -doubted, whether the condition could be applied to the portraits, or silver-spoons specified in the plaintiff’s schedule ; and he charged the jury to consider them as covered by the policy, that the question might be brought before the court, by the defendants, if they should, choose to do so; / ,

With regard to the terms stock in trade, the’jury were charged that those terms, when applied to a baker’s property, must be intended -to mean something more, than when -used among merchants, from whom they were borrowed, and to whose business they were, originally applicable. That the terms when used in a policy, to designate' the property of a mechanic, must be taken tq mean whatever was necessary for the conducting of his business, and in this case, not' merely the flour used for baking.

As to the value and amount of the articles destroyed, the jury were instructed, that the plaintiff could not recover for the flour stored in the shed, ñor for items, the. existence, quantity, and value, of which he had-not. established by proof, and they were charged to weigh all the evidence upon these points carefully.

The jury found a verdict for 1,013 dollars in favor of the plaintiffs, and the counsel of the defendants excepted to "the charge of the Judge.

*Mr. P. A. Cowdry,*for the defendants,

now moved for a new trial, first, upon the ground of a misdirection, and secondly, because the verdict was against evidence. " Upon the first point he contended, that "the terms *“*stock'in trade” as used in the policy, did not -include the fixtures and implements of the plaintiff’s business, nor his waggon and;harness; but covered merely the flour and bread, which were upon the premises at the time of the fire.

*493As to the finding of the jury, he further contended, that they must have relied entirely upon the *oath of the plaintiff*as presented by the preliminary proofs. That all the other evidence merely showed, that the plaintiff had *some*furniture, *some*fixtures, and *some*stock in trade; but the amount and value of the same was in no way shown, except by the plaintiff’s own swearing. As the proof upon all these points was entirely defective, he insisted, that a new trial ought to be granted.

*Mr. J Anthon, contra,*for the defendants, contended,

that the Chief Justice’s construction of the policy, was entirely correct, and that there was evidence enough to warrant the finding of the jury.

*Per Curiam.*

The terms “ stock in trade” as used in the policy, are to have a more extended meaning in this case, than in their ordinary application to the business of merchants. The plaintiff was a baker, carrying on business in a limited way. On the day of the fire, his whole stock of *bread*was upon his cart, and he contends, that in order to give effect to the intention of the parties, his fixtures and implements of business, must be considered as covered by the policy. We think the policy protected every thing which was necessary for the carrying on of the plaintiff’s business ; and such ought to be the construction in all cases relating *to*the pursuits of mechanics. The construction contended for by the defendants, is altogether too narrow; and would, in many instances, entirely defeat the principal objects of insurance. The evidence shows, that the meaning given to the words by the presiding Judge, at the trial, corresponds with the understanding of persons skilled in the trade; and a mechanic who insures his stock, covers his implements of trade also. The meaning of the terms will vary, according to the business to which they are applied. The stock of a merchant comprehends articles entirely different from the stock of a farmer; but the terms in all cases, apply to *personal*property only. By giving a liberal construction to the policy under consideration, it is quite clear, that the intention of the parties will be best effectuated, and justice thereby be done. The *494charge of the Judge, at the trial, was, therefore, entirely correct, and the grounds of exception are not well taken.

But upon the second point raised by the defendants, we think there ought to be a new trial. , The verdict is for a much larger The jury have virtually amount than the evidence will warrant, adopted the plaintiff’s own statement of his loss, as the basis of their estimate, deducting therefrom the item of flour stored under the shed, which the Chief Justice properly instructed them, ought to be excluded. There is no evidence to show, that many of the items charged were upon the premises at all, at the time of the'fire. The witness who assisted in making out the plaintiff’s statement, knew nothing of the household furniture; and the proof is abundant to show, that such furniture as there was, was saved. , The causé must be tried again, to ascertain the amount of the plaintiff’s loss, and as the whole controversy, will be confined to che items of the plaintiff’s claim, there should be a reference of the. cause, to ascertain the extent of the loss actually sustained by the plaintiff.

*New trial granted.*

[P. A. Cowdry, *Att'y for the defts.]*