Opinion,
Mr. Chief Justice Paxson :
This was an action of debt in the court below upon a policy of fire insurance issued by the appellant company to Stroud Burson upon a stock of merchandise contained in a building in Stroudsburg. The policy was for the sum of $3,000, and it was not denied that the loss exceeded that amount, nor was it alleged that there was the slightest taint of fraud about the transaction. The defence of the company is purely technical.
Among the warranties and conditions set forth in the policy, and to which the written contract is alleged to be subject, are the following: If the assured is not the sole and unconditional owner of the property; or, if the interest of the assured in the property, whether as owner, trustee, factor, agent, or mortgagee, lessee, or otherwise, is not truly stated in this policy; or, [281]*281if any change take place in the title, interest, or possession of the property, etc., this policy shall become void, unless consent in writing is indorsed by the association hereon. It is proper to say here, that this policy, while not so in form, was practically a renewal of a former policy between the same, parties, and covering the same stock of goods, which original policy contained no such condition. Upon this point, the uncontradicted evidence is that Mr. Mcllhaney, the agent of the company, called at the store where the insured property was, and asked whether W. S. Flory (who had charge of the insurance) wished to continue the insurance. Mr. Flory replied that he did, whereupon he said: “ I will make you another policy like the first one, only I will make it so that hereafter, if you continue, we will only give you a receipt, do not have to make a new policy for you.” The only object of this change, apparently, was to enable the insurance to be renewed thereafter by receipt, instead of issuing a new policy for each renewal. It may well be questioned, under this state of facts, whether there was really any change in the conditions of insurance. It would certainly have been proper for the agent, when he proposed to give the assured a new policy “ like the first one,” to have informed him of any change of importance in the conditions. The assured had a right to suppose there was no essential difference between the policies, and the case does not come within the ruling in Susq. Ins. Co. v. Swank, 102 Pa. 17, where it was held that a person who accepts a policy, and retains it for sixteen months, without reading it, cannot, after enjoying its protection during all that time, defend against an assessment upon the ground that the policy was issued upon a different plan from the one which he had verbally requested. We think the learned judge was justified in admitting the first policy in evidence, and in his instructions to the jury thereon.
The principal defence set up by the company was that the assured was not the sole and unconditional owner of the property covered by the policy.
There are certain facts which I understand to be undisputed. They may be briefly stated thus : (a) That there was no written application; (5) that the original policy contained no warranty clause ; (c) that the assured had an insurable interest in the property destroyed; and (d) that the property destroyed [282]*282exceeded in value the amount for which it was insured. Nor, was there any dispute about the facts relating to the plaintiff’s title, or the manner in which he held the title, and effected the insurance. For convenience, I take them as I find them condensed in the charge of the learned judge: At the time the policy of insurance was made, the plaintiff represented and stated to the defendant’s agent that he had purchased the property of .Simeon Flory; that he had entered into an agreement with W. S. Flory for the sale of the goods; that by the agreement the goods were to remain in the same place where the defendant had previously insured the same; that W. S. Flory was to have the use of the goods in his business, and pay for such use a rent equal to the annual interest on the amount paid by Stroud Burson for the goods, and also to keep the same insured, and keep up the stock to what it was when the plaintiff bought the same, and when the last dollar of purchase money was paid to the plaintiff he was to make a bill of sale to W. S. Flory, but until the whole sum was paid the goods were to remain the property of the plaintiff, and to be under his control; that the defendant’s agent, on this statement of the plaintiff’s interest made to him, said the proper way to insure the goods was in the name of the plaintiff; that at the time of making said policy and the several renewals, the agent inquired whether the same original arrangement continued, and was informed by the plaintiff that it did, and that said W. S. Flory had made a payment or payments on the said agreement to the plaintiff; that, the year before, said goods were insured by plaintiff in policy No. 82,245, which expired on February 2,1882, whereupon the defendant agreed to insure the property for another year in a policy like No. 82,245, with the explanation that thereafter the same was to be continued by renewal receipts; that the interest of the plaintiff in the goods mentioned in the policy was correctly stated to defendant’s agent at the time of the original contract of insurance, and, if the same was not correctly set forth in the original policy, such neglect was the act of the defendant ; and that there was no subsequent change of title, interest, or possession.
Nor, was there any dispute as to Thomas M. Mcllhaney having been the agent of the defendant company, with power to act for said company in Stroudsburg and vicinity, in receiving [283]*283proposals for insurance, issuing and countersigning policies, assenting to assignments, collecting premiums, etc. It is true, the statement of the learned judge that the said agent was “ clothed with more than the usual powers given by insurance companies to what are called local agents ” was not only criticised by the learned counsel for the company, but was assigned as error: See eighteenth assignment. But if we concede that the power of the agent was too strongly stated by the court, Mr. Mcllhaney had ample authority to bind the defendant. For the purposes of this case, we must consider Mr. Mcllhaney as the company.
We have, then, the case of a person who goes to the company, and fully and candidly explains the condition of his title, and is informed by its officers or its agent, it matters not which, that the proper way to insure his property is in his own name, as owner. He takes out his insurance in the manner he was advised; pays the premium on it for years, and then, after his property is destroyed by fire, he is confronted by a clause in his policy requiring him to be the sole and unconditional owner of the property; a clause which was not contained in his first policy, and which he had no reason to suppose was in the policy which had been substituted for it, and which he was told by the agent was to be “like the other.” Surely, if such a defence is to prevail, insurance has ceased to be an indemnity.
I am, however, unable to see why the plaintiff was not the sole and unconditional owner of the property insured, within the meaning of the policy. The evidence is not disputed that the entire legal title to it was in the plaintiff at the time the insurance was effected, and that by the very terms of the lease or bill of sale, by whatever name it may be called, from the plaintiff to Flory, it was stipulated that the ownership should remain in the plaintiff until the last dollar was paid.
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Opinion,
Mr. Chief Justice Paxson :
This was an action of debt in the court below upon a policy of fire insurance issued by the appellant company to Stroud Burson upon a stock of merchandise contained in a building in Stroudsburg. The policy was for the sum of $3,000, and it was not denied that the loss exceeded that amount, nor was it alleged that there was the slightest taint of fraud about the transaction. The defence of the company is purely technical.
Among the warranties and conditions set forth in the policy, and to which the written contract is alleged to be subject, are the following: If the assured is not the sole and unconditional owner of the property; or, if the interest of the assured in the property, whether as owner, trustee, factor, agent, or mortgagee, lessee, or otherwise, is not truly stated in this policy; or, [281]*281if any change take place in the title, interest, or possession of the property, etc., this policy shall become void, unless consent in writing is indorsed by the association hereon. It is proper to say here, that this policy, while not so in form, was practically a renewal of a former policy between the same, parties, and covering the same stock of goods, which original policy contained no such condition. Upon this point, the uncontradicted evidence is that Mr. Mcllhaney, the agent of the company, called at the store where the insured property was, and asked whether W. S. Flory (who had charge of the insurance) wished to continue the insurance. Mr. Flory replied that he did, whereupon he said: “ I will make you another policy like the first one, only I will make it so that hereafter, if you continue, we will only give you a receipt, do not have to make a new policy for you.” The only object of this change, apparently, was to enable the insurance to be renewed thereafter by receipt, instead of issuing a new policy for each renewal. It may well be questioned, under this state of facts, whether there was really any change in the conditions of insurance. It would certainly have been proper for the agent, when he proposed to give the assured a new policy “ like the first one,” to have informed him of any change of importance in the conditions. The assured had a right to suppose there was no essential difference between the policies, and the case does not come within the ruling in Susq. Ins. Co. v. Swank, 102 Pa. 17, where it was held that a person who accepts a policy, and retains it for sixteen months, without reading it, cannot, after enjoying its protection during all that time, defend against an assessment upon the ground that the policy was issued upon a different plan from the one which he had verbally requested. We think the learned judge was justified in admitting the first policy in evidence, and in his instructions to the jury thereon.
The principal defence set up by the company was that the assured was not the sole and unconditional owner of the property covered by the policy.
There are certain facts which I understand to be undisputed. They may be briefly stated thus : (a) That there was no written application; (5) that the original policy contained no warranty clause ; (c) that the assured had an insurable interest in the property destroyed; and (d) that the property destroyed [282]*282exceeded in value the amount for which it was insured. Nor, was there any dispute about the facts relating to the plaintiff’s title, or the manner in which he held the title, and effected the insurance. For convenience, I take them as I find them condensed in the charge of the learned judge: At the time the policy of insurance was made, the plaintiff represented and stated to the defendant’s agent that he had purchased the property of .Simeon Flory; that he had entered into an agreement with W. S. Flory for the sale of the goods; that by the agreement the goods were to remain in the same place where the defendant had previously insured the same; that W. S. Flory was to have the use of the goods in his business, and pay for such use a rent equal to the annual interest on the amount paid by Stroud Burson for the goods, and also to keep the same insured, and keep up the stock to what it was when the plaintiff bought the same, and when the last dollar of purchase money was paid to the plaintiff he was to make a bill of sale to W. S. Flory, but until the whole sum was paid the goods were to remain the property of the plaintiff, and to be under his control; that the defendant’s agent, on this statement of the plaintiff’s interest made to him, said the proper way to insure the goods was in the name of the plaintiff; that at the time of making said policy and the several renewals, the agent inquired whether the same original arrangement continued, and was informed by the plaintiff that it did, and that said W. S. Flory had made a payment or payments on the said agreement to the plaintiff; that, the year before, said goods were insured by plaintiff in policy No. 82,245, which expired on February 2,1882, whereupon the defendant agreed to insure the property for another year in a policy like No. 82,245, with the explanation that thereafter the same was to be continued by renewal receipts; that the interest of the plaintiff in the goods mentioned in the policy was correctly stated to defendant’s agent at the time of the original contract of insurance, and, if the same was not correctly set forth in the original policy, such neglect was the act of the defendant ; and that there was no subsequent change of title, interest, or possession.
Nor, was there any dispute as to Thomas M. Mcllhaney having been the agent of the defendant company, with power to act for said company in Stroudsburg and vicinity, in receiving [283]*283proposals for insurance, issuing and countersigning policies, assenting to assignments, collecting premiums, etc. It is true, the statement of the learned judge that the said agent was “ clothed with more than the usual powers given by insurance companies to what are called local agents ” was not only criticised by the learned counsel for the company, but was assigned as error: See eighteenth assignment. But if we concede that the power of the agent was too strongly stated by the court, Mr. Mcllhaney had ample authority to bind the defendant. For the purposes of this case, we must consider Mr. Mcllhaney as the company.
We have, then, the case of a person who goes to the company, and fully and candidly explains the condition of his title, and is informed by its officers or its agent, it matters not which, that the proper way to insure his property is in his own name, as owner. He takes out his insurance in the manner he was advised; pays the premium on it for years, and then, after his property is destroyed by fire, he is confronted by a clause in his policy requiring him to be the sole and unconditional owner of the property; a clause which was not contained in his first policy, and which he had no reason to suppose was in the policy which had been substituted for it, and which he was told by the agent was to be “like the other.” Surely, if such a defence is to prevail, insurance has ceased to be an indemnity.
I am, however, unable to see why the plaintiff was not the sole and unconditional owner of the property insured, within the meaning of the policy. The evidence is not disputed that the entire legal title to it was in the plaintiff at the time the insurance was effected, and that by the very terms of the lease or bill of sale, by whatever name it may be called, from the plaintiff to Flory, it was stipulated that the ownership should remain in the plaintiff until the last dollar was paid. It was urged, however, by the company that this transaction was a legal fraud, with the effect of making the property liable to execution on the part of the creditors of Flory; in other words, that Flory was the real owner of the property, while the plaintiff only held a bill of sale, unaccompanied by possession, and therefore worthless in law. Upon this theory the defence has been principally constructed. That it will not bear examination is apparent. The insurance company is not a creditor of Flory. It has no [284]*284standing to assert that the transaction is a legal fraud. It is good between the parties; it is good against all the world, except creditors of Flory, if there be any, intended to be defrauded. As between the plaintiff and Flory, and as between the plaintiff and the insurance company, the title was in the plaintiff. The fact that Flory had made payments on account to the plaintiff did not give title pro tanto to Flory. This is because they had agreed that it should not; that until the last dollar was paid the title was to remain in the plaintiff. In the mean time the goods remained the property of the plaintiff, and when destroyed by fire the loss was his. He must hand over the goods to Flory when the last payment is made, or if that is not possible, owing to their destruction, he must return him the money he has paid. The contract between the plaintiff and Flory must be executed as they made it, so long as it is not interfered with by some one Avho has the right to call its validity in question. I have endeavored to show that the defendant company has no such right. In this view of the case, we do not think it was error to instruct the jury that they might find a verdict not exceeding the amount of the policy 13,000. See the twenty-first assignment. It is true this instruction is inconsistent with that contained in the answer to the defendant’s eighth point, but, as no possible injury could have resulted to the defendant therefrom, we forbear further comment.
The first assignment alleges error in the admission of the testimony of Lewis M. Burson and W. S. Flory as to conversations with Thomas M. Mcllhaney, the agent, at the time the insurance was effected. The ground of the objection was that the agent was dead, and the witness on the stand, W. S. Flory, was a party in interest. It is a sufficient answer to this assignment to say that it does not conform to the rules. Fortunately, in this instance, the omission has not prejudiced the defendant’s case.
I notice nothing in the remaining assignments that is not covered by what has already been said.
Judgment affirmed.