McCook weekly tribune. (McCook, Neb.) 188?-1886, 1883-11-15
Recent Legal Decisions.

Recent Legal Declsions.
Reported specially for the Philadelphia Record.
| FIRE lNsURANCE-VACANC OF HOUSE
| CHANGING TENANTS ONLY-WARRAN.
TIEs-rATEMENTs N APPLICATION
A dwelling house swas insured, and to
an action for the loss OF it two defenses
were made: 1. That as the house was
vacant and unoccupied at the time OF
the fire the policy was void under its
terms. ~. That as the, number of acres
in the farm was not correctly stated in
the application, such statement being,
uuder The terms of the policy, war
ranty, the policy was void. The house
became vacant by the changing of ten
ants for one night only, and was de-
stroyed by fire during the night The
owner claimed that as the house was
insured to be occupied by tenants, that
fact having been stated in the policy, it
would be an unreasonably strict con-
struction of the policy to hold the nom
occupation over one night, new tenant
coming in in the morning, vacancy
within the meaning of the contract, and
that the inconvenience of such con-
struction is strong argument against
it. And as to acreage. that net being a
| rna,erial fact, it was not a warranty.
The Judge charged the jury in favor of
the plaintiff ON both points, and the
case-Bennett VS.. Agricultural Insu.
rance company-was carried to the SUI
preme court of errors of Connecticut,
where the company succeeded in OBJ
tanning new trial. Judge Carpenter,
in the opinion, said: "The terms of this
policy are plain: 1. As to the vacancy.
The contract is neither obscure nor
ambiguous. and there is no room for
Interpretation. The court erred in its
charge. 1t is true the building burned
in few hours after it was vacated.
Butunder the clause in the policy we
are unable to see that time is material.
The important question was: Was the
house, In fact, unoccupiedP The plain
tiff also contends that the fire probably
originated before the premises were va
Gated but, concerning the Importance
of that inquiry, it was a question of
fact for the jury and not one of law
for this court. This point was not
raised below, and as the jury has not
passed upon it it is not the case here. 2.
AS to the warranty: The policy de-
clarses that 'all the statements contained
in the application will be taken and
deemed to be warranties on the part of
the assured The charge of the court
that the statements in the application
are warranties provided they relate to
the risk assumed is erroneous. The
parties to the contract made these mat
tiers material, and they must be re-
garded SO whether they relate to the
risk or not. Whether there were few
or many acres, of course, did not in
crease the fire risk, but we cannot con-
slider that. The only question for the
jury was whether the statements made
were true or not. If they were not
there was breach of the warranty,
and there can be no recovery. If they
were true in the sense in which the par
ties understood them, then there was
no breach
BRoKER-NoT LICENsED-RIGHT TO
COMMISSIONS. real estate broker
was to he paid $40, 900 under special
agreement for affecting the sale of
tract of real estate, but after perform
ing his agreement his commission was
refused to him and he brought an action
for it. The defense made was that as
the plaintiff had not taken out his Ii
cense as real estate broker, he could
not recover for his services in that ca
pacity. The court below entered a
judgment for the defendant, and the
plaintiff carried the case-Johnson VS..
Hulings-to the supreme court of Penn
sylvania, where he was again defeated.
Judge Gordon, in the opinion, said:
"The making of the special contract
will not relieve the plaintiff from his |
position. The statute deals not with |
the question of compensation but with |
the business itself. 1t Declares NO |
individual or copartnership other than
those duly commissioned shall use or |
exercise the business of real estate |
broker, stock broker or an exchange
broker, or a bill broker, under pen
atty of $500 for each and every offense.'
The test whether q demand connected
with an illegal transaction can be en-
forced at law is whether the plaintiff re-
quires the aid of the illegal transaction
to establish his case. Whenever it is
made to appear during the trial that
the plaintiffs claim rests upon. an lille
gal foundation the court will not lend |
its aid to enforce it. On the other hand,
when the illegal transaction is not in
volved in the case itself, but in mat
ter distinct and collateral, recovery
may be had.''
RAILROAD-FIRE FROM ENGINE
OWNER lNsURED.-The owner of
quantity of cotton sued railroad COM
pany for its destruction by a fire caused
by sparks escaping from an engine
through the negligence of the engineer.
The company for defense set up that
The auner had the cotton insnrad for |