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Insurance Company v. Huchbergers, 79 U.S. 12 Wall. 164 164 (1870)

Insurance Company v. Huchbergers

79 U.S. (12 Wall.) 164


Judgment affirmed under Rule 23, with ten percent damages in addition to interest, the Court believing that the writ of error bad been brought for delay.

L. & M. Huchberger brought suit against the Merchants' Insurance Company of Providence, R.I., declaring upon a contract to insure them for one year from September 14, 1866, against loss by fire on their goods "contained in the brick building No. 173 Lake Street, Chicago." The narr.

Page 79 U. S. 165

also set out that it was provided in the policy that if the situation of the property should during the existence of the policy be changed by the assured, the policy should be void, and also it should be void unless countersigned by the agents of said Merchants' Insurance Company.

After the averment of interest in the property insured, the narr. continued:

"And the said plaintiffs aver that afterwards, to-wit on the 2d of March, A.D. 1867, the said property in the said policy of insurance mentioned was burnt and destroyed by fire. And that the situation of the property has not been, during the existence of the said policy, altered or changed by the said plaintiffs."

The company pleaded the general issue, and a trial having been had on the evidence, a verdict was given for the plaintiffs. The defendants then moved an arrest of judgment on the grounds:

1. That the narr. did not aver that the goods were burned at the particular place mentioned in the contract, to-wit, "the brick building, No. 173 Lake Street, Chicago."

2. That the countersigning of the policy by the agents of the insurance company was a condition precedent, and ought to have been averred in the narr.

This motion being overruled and judgment given for the plaintiff, the company brought the case here on the sufficiency of the narr.

No counsel appeared personally for the insurance company, the plaintiff in error. A brief was, however, filed by Mr. 0. B. Sansum in its behalf, arguing that the contract was to insure goods in a particular place only, while for aught that appeared, they had been burned elsewhere. Neither, as the brief argued, was the policy to be of effect unless countersigned, yet there was no averment that it bad been. Accordingly no title to sue bad been shown, and for this want of title shown, judgment should have been arrested.

Page 79 U. S. 166

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