Hidden v. Slater Mut. Fire Ins. Co.

12 F. Cas. 121, 2 Cliff. 266

Opinion

CLIFFORD, Circuit Justice.

The insurance was in the name of Hervey M. Richards, lessee, and the terms of the policy show beyond controversy that it was an insurance upon his leasehold estate. The terms of the lease neither required nor authorized him to effect insurance in the name, or even for the benefit of his lessor. The covenant was to pay an amount of money equal to the expense which may have been incurred in keeping said house insured against fire, in the-sum therein specified, during the year preceding, but if no amount was expended by his lessor for that purpose, within the preceding year, then he had nothing to pay on that account. ' The lessor reserved the right to effect the insurance, and of course had the right to select the company and make the contract The lessee might insure his own leasehold interest, but he could not insure anything more, unless he had made improvements. Undoubtedly he had made improvements, but the case shows that those improvements were insured in another office, so that he had no interest that was the subject of insurance, except that which he derived under his lease, and having parted with that before the loss occurred, he cannot maintain his action. Authorities are not necessary at this day to show that a policy of insurance is a contract of indemnity, and that if the insured parts with his interest in the property before the loss, and no new contract is made, it avoids the policy. Hoxsie v. Providence Mut. Fire Ins. Co., 6 R. I. 517; Lynch v. Dalzell. 3 Brown, Parl. Cas. 497; Sadlers' Co. v. Badeock, 2 Atk. 554; Ang. Ins. § 55; Wilson v. Hill, 3 Metc. (Mass.) 66; Carpenter v. Providence Mut. Ins. Co., 16 Pet. [41 U. S.) 495.

Had the lessee covenanted to keep the premises insured during .the term, and if the policy had been executed upon that subject-matter, it may be that the rule would be otherwise, but it is unnecessary to express any decided opinion upon that point, as no such question is presented by the facts in the case. According to the agreement of the parties, the verdict must be set aside, and judgment must be entered for the defendants.