Delaware gazette and state journal. (Wilmington, Del.) 1883-1902, 1894-06-21
A FIRE INSURANCE CASE.
The Court of Errors and Appeals Hands
Down an Important Decision at Dover.


Down an Important Decision at Dover.
The court of errors and appeals which
is now sitting at Dover, Tuesday de-
livered a decision in the fire insurance
case of the Dover Glass Works Co., use
of Caleb S. Pennewill VS.. the American
Fire Insurance Co. The decision was in
favor of the defendant and the case has
been pending since 1889, having been
removed from the superior court of
Kent county. 1t was made a case stated.
The Dover Gas Co., which was made
the defendant in the suit, was burned
out in October, 1888.
Edward Ridgely and Charles II. B.
Day appeared for the plaintiff and
George IL. Bates for the defendant
The decision was Tuesday handed
down by. Chancellor Wolcott, who said
that court could interpret, but could not
make contracts; they must be made by
the parties interested and the court can
neither add conditions Thereto or take
them away. In regard to the claim
that policy covers real and personal
property if it be avoided for breach Of
condition as to part Of the property in
sured it is avoided as to the whole.
Continuing the court held:
The condition prohibiting encumbrances
and levies without the consent of the
defendant, declaring the policy to be void
in case of breach thereof. is not only legal
and conformable to public policy, but
reasonable and proper when we consider
the circumstances and business methods
of not few men and the motive that
influence them in regard to their financial
affairs the object of such condition be-
comes quite manifest. So long us the
insured property remains in q condition
in which its preservation is of more inter
est to the owners than its destruction there
is no inducement to court or invite the
peril against which it is insured. The
substantial interest which the insured has
i'll the property is on the side of care and
| diligence. and operates as a guaranty of
his good faith in his conduct. But when
| it becomes encumbered to such an extent
that the incumb brances are equal to or in
excess OF its value the motive to caution
and vigilance ceases.
The condition forbidding the cessation
of the operations of the establishment
| without the consent of the company is
| reasonable and proper. The company lad
a right to stipulate on the case and super
vision of the skilled workmen employed in
running the concern during the customary
| working season and to make the liability
dependent upon the fulflment thereof.
The court held further in regard to
the rights of the insurer under the con-
ditions of the liens-they cannot be held
to apply to voluntary encumbrances.
Conceding that the defendant did waive
any cause of forfeiture on account OF
any membranes created prior to July
7th, 1888, the date of the last renewal
of the policy; yet it nowhere appears in
the statement of facts that the defend.
ant had any notice of the judgments in
favor of HAZEL & Pennewill, nor of the
one in favor of Caleb S. Pennewill fol
$4,000 obtained by confession against
the plaintiff September 7th and 9Th, re-
spectively, nor of the mortgage collat
eral to the last named judgment recorded
contemperaneously herewith. And il
it had it does not appear that it did any
act which by necessary implication stops
it from setting up the violation of such
conditions in the manner stated, as de-
fence in this court. 1t follows then that
no loss occasioned by the destruction oi
real property can be recovered undel
this policy.
1t was the unanimous opinion of the
judges that the plaintiff could not re-
cover the loss of either the personal ol
| real property covered by the insurance