The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1873-02-21

t,anv Ins. Co., II N. Z .tot. Harper =. New
York ms. Coz, %. N. L. Al, s. = = " ME,
q ON the ether hand, the decisions 81 the
" courts of Massachusetts afe as uniformly
athe other way, and are sustained oy the ne
!" courts OF some of the other States, rs wei
ems bY the Supreme Court of the United
estates. See Whitemarsh U. Charter OAK
Fire ms. Co., 2 Alien 5S1. Stein
I,cl- n. TINS. CO., 10 ,Wallace 1873. The rea-
soning of the learned judges in these cases,
and of Judge Wingfield, Is conclusive OF
the proposition that, by the use OF the gene
raj ter-ns such articles are not intended 70
Inc insured as are excepted i'll the prfntea
conditions on the policy.]-REp.
"Flauderl, in big recent work on Ere IN
s. s,,rance, laws down the law in conformity
with the New York decisions, PIP. 3o9-l0,
asl1. The reason generally assigned lot
Z" this is that in filling up the blanks III the
" printed forms the parties have their atteh-
"tion more particularly directed to tle "rlt-
q tcn matter of the instrument than tae
.'printed part of it, and that therefore Tue
g" mart in writing should prevail over the
. nrinted provisions aud conditions. can
..not give the assent OF my mind TO this"
The learned Judge then says that
tbe Dolcv must lie construed with reference
to all of its provisions, whether Dratsen or
Drinfed, so rs best to arrive at the intention
of the parties. He then shows that there Is
no renugnancy in the provisions in the pol
icy in this case, and says: u
"think, therefore, that the policy itself
:. nIainly excepted burning fluids from the
g Ierms of the general description OF the
d" goods to be kept, and expressly prohibited
"thcm." 81 think that the rule laid down
"by the courts of Massachusetts, and the gu
"urcme Court the better law, and founded
@ in better reason, and should be tolloWedln
"prefcrence to those of New York."
The next question is, did the sale ana
transfer bv one OF the partners to the othcI,
of lis interest in the stock Of goods insured,
and the policy, without the consent or the
conmAy, vitiate the policy? Upon THIS
" question also the decisions of the courts OF
New York arc in conflict with those OF
"otber States" Angel, in his work on
Fire and Life Insurance, section l9I, follows
tbp New York cases. Without
being able to give the reasoning of the learn
cd Judge on this point, which is lengthy and
very able, and in which he adopts tho rule
laid down by Flanders, PIP. $3.50; Parsons
on Contracts, PIP. 10, 20, edition of 1904; by
Judge Marshall, Gin Columbian Insurance
Company Us. Lawrence" 2 Peters % and by
Lord Mansfield in "Weston Us. Barton" "a
Taunton, G73-he Judge then says: "The
contract of insurance in this case was made
with Woodward, the retiring partner. 1t
" is said that burning fluids were kept in
the store while he was partner,
aud no accident occurred in consequence
"of it. Who can say that if he had con.
"tinued a partner that his diligence and
"pru1ence would not have prevented the
" accident from which the fire occurred
upon the whole, am of the opinion that
{" the sale by Woodward Of his interest in
"the property insured to the plaintiff With
"out the consent of the company, forfeited
"the policy"
The judgment Of the court below was re.
verscd and annuIled, and Il Judgment entered
in favor of the Insurance Company for costs
in both courts.