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(Plaintiff in the Court Mm,) APPELLANT- AND The Mutual Fire Insurance Oompany of Stanstead and Sherbrooke Counties, (Defendants in the ('ourt btlote.) RESPONDENT*. ^[?iP[§(L[L/^K]ir'g ©iA§>Eo THE aciiou of the Appellant, Plaintiff, in the Court below, was brought in the Su- ->- perior Court, at Sherbrcoko, to recover the sum of £375, amount of a policy of insurance granted by the Respondents in his fuvor, and dated March 24th 1864. Tho action was returned into Court, on the 18th dayof March, 1856. The declaration, alter alleging the existence of the Insurance Company, as a body politic and corporate, au- thorised by law to effect insurances against loss or damage by fire, sets up the Policy granted by Respondents to Appellant on the 24th day of Match 1854. insuring tho sum of £375 upou the Appellant's stock of goods conMsting of dry goods, crockery, hardware and groceries, situated in a certain store at Richmond, for the period of fivj years; that on the 15th day of May 1856 the stock of goods insured was removed with the consent of ihe Respandentj to a new wooden building near the Railway Depot in Richmond where, by an agreement with the Respondents endorsed upon the policy the goods were to remain insured the same aa before removal ; that appellant was the proprietor of tho last mentioned building and of the insured goods and consequently had an insurable interest in the said goods ; that the goods were consumed by fire on the 27th day of August 1856 ; that Appellant gave Respondents duo notice of the fire and of the amount of his claim for indemnity and named an expert on his behalf, and complied wiib all the formalities required by law, but the Respon- dents failed to name an expert on their behalf and refused to settle tho claim of tho Appellant. The conclu- sions are for the sum insured, £375, interest and costs. The Rv'spondents met the action by two special exceptions and a defentc an fondt en fait. By their first plea they allege, in unambiguous language, that tho Appellant after removing his goods burned the building in which they had been contained with intent to defraud the Respondents and other Insurance Companies. The second plea alleges that tho goods were insured only in tho building mentioned in the policy, where however they were not burned, and that Respondents did not consent to the alteration of tho policy nor to continue the insurance after removal ; that while the policy granted by Respondents was in force the Appellant effected an insurance upon the same goods with thovEtna Insurance Company, of £800, without tho know- ledge or consent of Respondents and that their policy became in consequence null ; that the sum insured in both policies exceeded tho value of tho goods, and that the double insurance was fraudulent ; that no notice was given by Appellant within 20 days of tho amount claimed and of tho name of an expert on behalf of Ap- pellant ; that Appellant had not accounted for exact quantity of goods, and had not attempted to show the amount of his loss ; that tho fire was caused by tho carelessness and negligence of tho .\ppellant ; that the Appellant fraudulently represented tho amount of his stock at the time of the fire to bo greater than it really was, and removed the most valuable part of the goods previous to the fire and has since disposed of them. "^ Issaebeingjoincd, the parties went to evidence, the Respondents at great length. On the 27th day of March last the following judgment was rendered, viz : " The Court, &c., considering among other things that at the time the goods insured by the DefendanU in " this cause, for the loss of which the Plaintiff claims to bo indemnified by the said Defendants, were destroy- " ed, tho said goods were also insured by the JUtna Insurance Company, such last mentioned insurance having " been effected by tho Plaintiff without the consent in writing of tho said Defendants, as by law requited, and *' without their knowlndsA. as \m nrnVArl Kv fKn avwIaraa <./t/l..nA4 :» *!.:.. .. 1 .L- . fj Tx i> J , ""'^- •"" "v..«.. .u „ui<, uui.a.1 IB luuuucu ucusmo iiuit anu voia, aoin maintain tne exception of the said l»e- • fendanta lastly pleaded in this cause, doth declare the said policy so granted by the suid Defendants to the "said Plaintiff, null and void and doth dismiss the action of the said Plaintiff in this behalf, with coats, &c." The principal questions of law raised by the Respondents in their pleas are the following, viz :— 1. That tho Respondents did not consent to tho allerition of the policy, and that consequently the insur- ance was not continued after tho removal of the goods. 2. That the policy was rendered Toid by the insurance effected with the JEtna Insurance Company. 3. That the Appellant failed to give a sufficient notice of his loss within the time prescribed by law. 1. The alteration of the Poliey. The usual mode of altering a policy of insur«nce is by indorsement in writing made thereon ; (1) and this method was employed in the present case. The Appellant claims that the insurance upon his stock of goods was conUnued by the lUspondents, after removal in virtue of a special indorsement upon tho Policy, signed by their Secretary and tacitly admitted by the Respondents not onlv by their general practice in regard to such continuances of insurance but by their afterwards rejecting the Appellant's claim solely upon another ground, The indorsement referred to is in the following terms : 1. 1 FhlllliM on lunrsace No. 10». — — — — m "The goods insursd within have b«ea removed to a oeir building abouc twenty rodi South of the block of " cottages on the Depot, ground at Richmond Station, where they aro to continue insured the same as bufore "removal. Sherbrooke, July 2l«t 1866. (Signed) IIollis Smith, Sec'y." If it be the practice of an In- surance Company to sanction alterations made by thoir Secretary, this makes his Act valid. ( I ] That such has been the practice of the Respondents is abundantly proved by the evidence of their Secretary and of Leet, one of their agents, as well as by the answoru given on bebulf of the Respondents to the Interrogato- lies swjaitt el articles, submitted to them. The removal of the goods and the alteration of the Policy were known to Respondents but never complained of by thorn. At the annual meeting of the Directors which took place a little more than a month after the flro, and at which, it is to be presumed, the whole matter of the Appellant's claim was gone into, the action of the Secretary, in regard to the alteration of the policy, was not called in question, but was impliedly ratified by the foiinal rejection of the claim upon the sole ground of a double insurance not consented to by the Rospondents. The Appellant need not comment upon the bad faith exhibited by this pretension of the Respondents in regard tu the alteration of the policy, but it would be manifestly unjust for thorn to be permitted to ignore their constant practice and repudiate the ac- tion of thoir principal executive offlcer for tho purpuao of defeating the claim of one of their me mbora. 2. The, double insurance. It was upon this ground alono thai the action was dismissed. Tho Appellant respectfully maintains that the Court below was in error in holding that tho subsequent insurance "of his goods with the yEtna Insurance Company rendered his policy with the Respondents absolutely null. There is no law of Lower Canada which requires notice of a subaequont insurance to be given to previous insurers, and their consent to the same to be given on pain of nullity of the policy first granted. Such a condition is frequently inserted in policies of insurance, but there was no such condition in tho present cnse. The statute authorising tho establishment of Mutual Firo Insurance Companies in Lower Canada, and under which the Respondents are incorporated, ('2) provides "that if any insurance on any house or building shall "be made with tho Company, and with any other inaurunco company, or office, or person at the same time, "tho policy issued by the company shall bo void, unless such doublo insurance shall have been agreed to by "the dircctoto, and their consent to the same signified by an indursemoot on tho policy, signed by the presi- "dont and secretary." (.M) This pro-ision evidently does not refer to insurances upon goods or other move- able property. If, however, any doubt could exist upon this point, it has been set at rest by the Legislature, in passing tho Act 19 Vic, Cap, 08. The preamblo of this Act declares that it "i> expedient to amend' the Act 4 VVill., •<, Cap. .33, "»o far as relates to double insurance, 4'<"-," and tho lat section provides that, "the "provisions and enactments contained in tho twenty-third section of the above cited Act shall bo held to in- "cludo and have reference to all prnporty, as well personal ns real, ic." It is true that this amending Act does not apply to ponding suits (1) and docs not therefore govern this case ; but it may bo fairly cited as af- fording a rule of interprotat'on, should any bo required, of tho twcnty-tliird section of the Act which it is intended to amend. Dor jlo inaurancex aro recognized both by the Kngliah and French law, and are prohib- ited by neither. Although it is tho practice of aomo insurers to require no'.ice of a double inaurancc, if tho policy contains no stipulation on the subject, the assured may insure with dill'erent companies, and recover in- demnity from any of them. (5) The Appellant maintains that there c:in be no question of this when the value of tho goods does not exceed the amount insured by all tho policies. (6) This, he apprehends, is es- tablished by his evidence of record. Tho insurance wiih tho .V.tnti Inaurance Company wu» cflectcd subse- quently to that with tho Respondents, so tliat there can be no pretension that tho want of notice operated us a misrepresentation or concoalraont. At the timo tho Appellant rc( cived his policy from tho Respondents, he told Mr. Smith, the Secretary, that if hu conhl not get inory insutaocc liom tho Company, he would be obliged to get additional insurance in anouier company. (7) That gentleman did not then inform the Appel- lant that in case he should carry out his intention, he would be required to give notice to tho Respondents, or make any objection to his oifeeting an insurance with another company. The Appellant conceives that he bad a right to effect tho secona insurance, and that the Respondents wera in no way prejudiced by his doing so. 3. The want of notice of amount claimed, A-r,, mtliin twenty daijf. Immediately after the fire, tho Appel- lant notified the Respondents, by letter, of tho fact, and inquired what verification of his loss was required. The Secretary answered that he must shew as clearly as possible the amount of his loss, but failed to remind him of the time within which his claim ought to bo preferred, and of the necessity of his naming an Expert. A little more than a month elapsed between tho firo and tho formal notice of the Appellant, claiming £375, and naming his Expert. Before receiving this last notice, nt their annual meeting held on the Ist day of Octolier, 1855, the Directors of the Company passed a resolution rejecting the claim of tho Appellant solely upon the ground of the double insurance. No other resolution was passed upon the subject. The notice of the Appellant was answered by tho Jtespondcnts the following day in a letter from tho Secretary, rejecting his claim for tho reason before stated. The Appellant contends that the delay of twenty days imposed by tho statute (8) is not a fatal delay. It is not said that tho claim must be preferred within tho delay n peine de nullile. Such provisions aro always liberally construed. (9) Where the notice is to be given forthwith, and tho giving of it is held to bo a condition precedent, it is sufficient if the condition be performed in a reasonable time. (10) Hut our own law rather regards the interest of the party raising tho objection than any nice technicalities of language, liven tho default to give the notice is not a finde non recevoir to an action on the policy ; (11) and subjects tho assured to no penalty, unless the assurer can shew that he has boon injured by the want of notice. (12) Such injury has not been pretended by the Respondents iii this case, nor could it have been, for they rejected the Appellant's claim before re- ceiving his formal notice. But, oven if the Respondents had a right to require the compliance with the very letter of tho Act, in regard to tho amount claimed and tho naming of an expert, they have waived such right by their silence and by objecting to the loss on another ground. (13) The Appellant conceives that upon all these legal questions raised by the Respondents, the weight of au- thority as well as of reason is against them, 7. 8. 9. 10. 11. 12. 13. 1. riiillipB lue. No. 110. 2. (ireonl. Ev. (Edition of 1850,) No. 405, twU. i Will. 1V-. Cap. .'la, p. 594 Kov. Stat. " " Sec. 23. Sec. 7. 2 I'hillipa Ins. No. ]2o0. Pothicr Cont. d'.iss. Noa. 159, 100. 3 I'ardesjua, Or. Coml. No. 767. Merlin, X\rb. t'otiee and Conlrat d'Ai: No. 13. Depoaition of Steel, witncaa ot Appellant. 4 Will. 4. Cap. 33, Sec. 10. 23 Weutl. Rep. 525-527. II John. Kep. 240-260. 3 Orcenl Ev. No. 406. Merlin— IVri. Police el Cont. d'Au. No. 20. Pothier Cont. fAat. No. 127. 2 Phill. Ins. Noa. 1803, 1812 and 1813. I " No. 889. ■*!»!r:- South of the block of rad the samn m bufor» i the practice of an In- t ralid. (t] That (uch their Secretary and of nti to the In(errogato- ion of tho Policy were s Directors which took lO whole matter of the on of the policy, was upon tho sole ground ot comment upon the I of the policy, but it and repudiate tho ac- their members, issed. The Appellant uent insurnnce of his ssolutoly null. There a to previous insurers, d. Such a condition } present cnse. The er Canada, and under oiue or building shall ion at the same time, ave been agreed to by , signed by the prcsi- joods or other move- est by the Legislature, pedicnt to amend' the in provides ihot, "the :t shall bo held to in- at this amending Act r bo fairly cited as af- the Act which it is I law, and arc prohib- iblo insurance, if the panics, and recover in- ion of this when the he apprehends, is es- y wim effected sul.se- of notice operated us n the Uespundenta.hc ipany, he would be len inform the Appcl- to the Uexpondents, or tnt conceives thut ho >judiced by his doing er the Arc, tho Appcl- is loss was required. , but failed to remind is naming an Expert, :IlaDt, claiming £375, id on the 1st day of tho Appellant solely lubject. The notice from the Secretary, he delay of twenty t bu preferred within 'here the notice is to cient if tho condition itcrcst of the party vo the notice is not penalty, unless the 1 not been pretended It's claim before re- plianco with the very ive waived such right ts, the weight of au- modes estabhshed that the amount of goods consumed by the Are wa. between £1300 and f 1.500 Iho particulars of the Are are proved by tho witnesses Burney and Hay; and the fact that the Afnellanf. stock of goods was removed to the new building and there burned is proved by the two witnel... «& ^ by the wunes.es Dyson, Leet and Steel, The Respondents have bofdlyleJtid'rtheTS plea That thJ Appellant set the tire himself after he had fraudulently removed his good. • but thev have not .H^mn» V, prove either of these allegations, nor have they been ,L to shew the^.I^Jhle.? eason forthelrk su.o fonS rhrfl^o^r";"" '?,t"r .'" «"*• ", '='"'"^'"- O" ">« contrary it i. established in evWonco thaT when tho fire broke out the Appellant was asleep in his bed and that he and the other inmates of the ho u.«k!h some difficulty in securing their personal safety. Tho Appellant cannot thinnhat »h» ™L ii ? ^ crimes such a, are charged upon him by the Respondent.^ buunuZ ted by a syl kble of ev"id'i!!n °° °' z:TJ^^;:;i:'£^;S(^^--^^--^^'^ ''"' who were rLyfo^k: :£t':Lr:i:::^^ the stock of goods wa. worth about £1500 ; that ifwas „ large sto k for a coun^^'y s to and th"t th.^rd""" have no bias towar s ei her party, says tST.^iTLlVr.Uly^^^^^^^^^^ hteel, a former clerk of I'laintitf, proves that Appellant had a good stock of eoods 'rhnt .M. , • " dence of the amount of u stock of goods is of valL' is es.ablished'not TnTy by tL t •.imoS; of^ he^Ap'odla^n't' but in a pointed manner by that of the Respondents. The witnesses Hoi,ki...on H ^l'^^.? « Appellant Campbell, examined on behalf of the Respondents, agree in j; nT'hlt a o. Z trader an^^ "u form a general idea of the value of a stock' of goods, 'it is ,o b'e rema ked 2 ^Uhough the Re.no^^^^^^^^^^ have spared no pains to detect fl.aws in tho statements of tho Appellant thov have nornff.mnfoj , ^^^ u genenil evidence that .e Appellanfs stock of goods was smaffian i' rej e.^Ted b/h Tt-.^^^^ ' nfS^~aCS,:f;r^-;S^^ in tho .ta.oment. As this exhibit iVmadiZpiri I ^d 1^, 'iho t wT^^^^^ poudeius. the Appellant will refer to it. and to the inferences sou«ht t„Z dr wi 1 i To'o mrtS .1 u" when he comes to comment upon the lino of defence adopted by the Kospondcnts I'utieularly, 1 he Appellant would now call the attention of the Court to tho proof of tho amount of loss which is drawn from those of his books of account which were saved, from hi, invoices so far as collo^t,. 1 !,n,7 of hiseush and credit sales, ft will be borne in mind that his c" h hook ani 7 SV^i:^::^^^ clnses were burned. Of cour.o the poHitive proof that would have been afforded ,f the amou.tTf hi^ Zu falom byh.s cash, book bad it been saved, had to be .Hppli.,1 bv general cvidenre Tl.it t I rrV f .1 Appellant exceeded his cash sah-s is proved bv lUirney Miller and Steel "hit :^. f ''" "^ of tho affairs of the Appellant from tL- materials to b'e p^u ed \J^^ nde fuk f by Mr i"ot: k'""°'"' witness examined on behalf of the Appella-t. and whos!;. business cipacit; abuSaSy tes iBed brtho B atement furnished by him and clearly explained in hi,, deposition 'Vf^er ascertaining tL„'» ? chases from what invoices vVc. could be oblained. Mr. Kingan made « ^utemeiuTf t o r ' ^7 Tu' examining every account in the books for that p;rposo ; tlln sutementl ofTow mucl aZi , t hldrS n cash and produce and of moneys paid out. Assuming the cash and credit sale, to bTSarnl hou.h the witness was satished the credit sales were greater. Mr. Kingan established the loss to he more ban £13 00 llic summary of his statements and calculations is as follows, viz ;_ il JOO. \ot Stock as shewn by Stock fiook K and Invoices £3900 o ,-. Deduct— Net Credit Sales jCl^tiO 13 7 " Net Cash Sales 1269 13 7 2539 7 2 The evidence of Mr. Hutch.ns and Mr. Cross, two competent business men. also establlhe, tint the loss of t rutrl I n"' ^^^^r=dcd XIOOO ; and thoy ngr.cin stating faat the result would not have Won mv «nally altered had they taken mtonccount the ^oods saved. The Appelant submits thatthe evidence of Mr ^i:^S'Z^£;.i;ti:::i,!-t:t^ "''°" ^ithmetica/^alculation and unshaken'i/rS ...?.'!? 7';"!'' '^""«''''„°f/''°. pjPomlents in adducing evidence in the Court below, were directed to nrovinir a the s atement ; A" furnished by tho Appellant, was erroneous, and that it would be imnosl ble ti^ make such a statement with any degree of accuracy. It cannot be denied that several errors, of 3 or less mat nitudo, were discovered by the Respondent, in the inventory referred to aa -Rook A." The Anne lanlns no desue to dispute this fact, but he does most emphatically deny that the inference of fraud drfwn f^^om it just. Ihe Respondents say that tho book is c.roneous. and their witnesses are unanimou i^a -^rtinJ that such a list could not be made without many errors, even if made with fairness, as uT proved ,ho ^ne m uuestion was. Ihe inference is reasonable then, that tho errors in question were fallen into rneslv and Tn'tL"! t o^r' A°^^ ''":'^."'''"' '""^'"- , ^'''■^''■'•'"" ""^K'^*""- A- Beside, no induc'mnt is VhwJ 01^ the part of the Appellant to commit a fraud. Tho alleged overcharges amount to TiM I'l 0,1 ? with every po.,sible allowance being made, the Uespondents cannot main.a n tlTloss of the ' JJp.3hnt" tn have been less than £1000. Tho amount insured by the policies was je975 InHennn 1, f nf '.V"" '.'"" , '" inventory, there is evidence of record to shew that fr'om th^ tim'; V th„ fast a^olnf o'^T s k p t" t .rtimo of the hro, tho Appellant's stock of goods amounted to £3906 . 2 . 6d, and by his sales to jC25W 7 Z n balance, to represent stock at the time of the fire, was £1 306 . 15 . -Id What became o? these eoods' 'n.: Appellant's evidence establishes that they were burned with the exeeniinn nf „ .1. 1 » . *'^""''- \"« Respondent, havo entirely failed to makJgood thrcUf ttt rh^Tods w "re^^^^^^^^^^^^^ aUposed^Jf t he Appellant. To offset ogainst the errors claimed by the Respondents, are tho winte Joods Tefcrred 1 'v Uurney as inauvertently omitted from the statement, and other articles which ns the wkn7..„ i7 agree in saying, would of necessity be omitted in a statement malo'tVrou: memory ' ""' Rut If the Appel.ant committed mistake, in makiu^' out his schedule of goods, u re.-ijy palliation will l.„ M?x'x '-'t" ':i.!^^^i:^^:fi'' f^^'^'^^'^l -d statement, contained it! theTspomlont:' '"ex- '"''~'"""''"'™ **f """ secretary 01 ;bo Compauy.ui.ou these calculations and sta ements. ■•■'V',-/r»«f<ttifmmUitm^* ^f lil %Jm Jt U> ft mtmm ,4' '»^ ^< • the App«lUnt would particularly direct the attention of the Court. After having acoeit to the booke of ac- count of the Appellant, and the •tatemont in their poaicuioi: for two yeara they produced the Kxhibit X\. The object of the Ratpondents in making out this tKbibit, as repeatedly »Ut«d by the Secretary, waa to ar- riTB at a correct account of the Appellcnt'i itock. But in order to do fo, in regard to a great many artirlei, iuchai Tea*, Tobacco, Broad Cloth, Flannela, Coati, Vesta, Qloves, dee., the amount of stock taken in IBS'!, amounting to nearly £1000, was left out of the account altogether, and orrooeous balances put down against the Appellant aa overchargoK ! In some instances the inference is drawn that certain goods are to be deduct- ed, and muat have been disposed of since the fire, simply because they do not appear in the inventory A. These mistakes committed by the Respondents are some of them admitted by the Secretary at the close of his deposition, and are not here referred to with a desire to establish a charge of bad faith against the Uo- spondouts, but simply to show that grave errors may consist with upright intentions, and that the mistskes of ihe Appellant are entitled to be viewed charitably. The Appellant submits that he has acted in good faith. He never concealed the fact of the double insur- ance upon his goodf, bat gave notice to the Secretary of the Respondents of his intention to effect it. He has afforded the Respondents every opportunity tu investigate his claim, by giving up sU his books of ac- count. In establishing his loss he followed the mode which the witnesses of the Respocdents say must ne- cessarily have been adopted under the circumstances in which he was placed, and he humbly conceives that the amount of his loss was satisfactorily proved to be much greater than the sum insured upon his goods. The judgment of the Court below rests upon « legal objection which the Appellant conceives to be un- fonnded. An examination of the record, as he apprehends, will satisfy the Court here that instead of his aotioD being dismiued, judgment ought to have been awarded him for the full amount of his claim. THOMAS W. RITCHIE, Wot AppvUant. ■ii i|' 1011 to thi book* of M- lacod the Kxhibit XX. le tiecteUty, wu to u- D a great many artirlei, of stock taker, in ISSi, anoe« put down againit Ijoods are to be deduct- iur in the inventory A. Secretary at the cloae of d faith againit the Ko- and that the miitakea ict of the double iniur- «ntion to effect it. He up nil hii books of ac- ispocdents say must ns- I humbly cunceives that ured upon his goods, nt concoiros to be un- lere that instead of his It of his claim. r. RITCHIE, Vor Appellant. »H«iriiS^lriflWM)m|giiB^>(t,n<»^^