Mercantile Credit Guarantee Co. of New York v. Wood

68 F. 529, 15 C.C.A. 563, 1895 U.S. App. LEXIS 2890
CourtCourt of Appeals for the Second Circuit
DecidedMay 28, 1895
StatusPublished
Cited by6 cases

This text of 68 F. 529 (Mercantile Credit Guarantee Co. of New York v. Wood) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mercantile Credit Guarantee Co. of New York v. Wood, 68 F. 529, 15 C.C.A. 563, 1895 U.S. App. LEXIS 2890 (2d Cir. 1895).

Opinion

LACOMBE, Circuit Judge

(after stating the facts). It will not be necessary to go into any elaborate analysis of the computations by which the losses sustained under this poiicy were adjusted. The main controversy is as to the interpretation of the word “loss,” as used in the policy. The defendant contends that it means the amount of indebtedness due from the insolvent at the time of his suspension or failure. The plaintiffs contend that the word “loss” means, not the amount of indebtedness due from the insolvent debtor at the time of his suspension, but the balance of such indebtedness after deducting from the entire indebtedness the payments made by the debtor prior to adjustment under the policy; such balance only being, as plaintiffs claim, the amount actually lost by the insolvency of the debtor. The circumstance that the policy contains limitations as to the amount of loss by reason of the insolvency of each particular debtor for which the insurance company agrees to respond makes it necessary to determine which construction is the correct one. For example, if the debtor fails owing $15,000, and subsequently pays $10,000, and the policy limits the company’s liability for loss sustained through him to $7,500, shall it pay $15,000, the whole debt, less $10,000, the payment on account, which difference equals $5,000, or shall it pay $7,500, the amount of risk it took, less $5,000, the proportionate part of the debtor’s payment when distributed between the amount of the company’s risk and the amount of credit extended to the debtor in excess of such risk, —a difference which, in the case assumed, equals $2,500? To determine this question it is necessary carefully to analyze the entire policy. For a consideration expressed, the company “insures Chas. F. Wood & Co., to an amount not exceeding $10,000, against loss sustained by reason of the insolvency of debtors owing the insured for merchandise * * * sold and delivered, in the regular course of business,” between certain dates. “Loss by reason of the insolvency of debtors owing for merchandise,” in the ordinary use of common speech, means such money thus owed as the insolvency of the debtor has prevented the creditor from collecting. If, notwithstanding the insolvency, the debtor pays a part of his debt, it is the unpaid portion only which is lost by reason of his insolvency. The clause above quoted limits the total liability of the company, in any event, to $10,000. Other limitations are provided for in the ensuing clauses. It is therein provided that the loss insured by defendant company is the loss sustained “in excess of the face of a bond of the American Credit Indemnity Company for the same term for $10,000, and also the initial loss stated therein, viz. one per cent, on the total gross sales and deliveries,” etc. It is agreed by both sides that this so-called initial loss is $4,519.57. Therefore, there can be no recovery by the assured, under the policy in suit, unless the losses sustained, and which are within the terms of the policy, exceed the sum of $14,519.57 (the initial loss and the American Credit policy), and then only for such excess. The policy next provides that the defendant shall be liable only for losses which shall [531]*531be sustained on sales to debtors rated, both as to capital and credit, in a specified mercantile agency, and then limits defendant’s liability to respond for individual losses by reason of persons thus rated as follows:

“Such losses to be included in the calculation oí losses hereunder to an amount not exceeding thirty per cent. (30%) of the lowest capital rating of such debtor, according to the rating given him by the said mercantile agency, but in no case to exceed $7,500 upon any debtor.”

By a rider annexed to the policy it is further provided that during the continuance of the bond of indemnity issued hy the American Credit Company to Charles F. Wood & Co. for $10,000, with a $7,500 individual limit—

“The limit to any one debtor who, according to his or their capital and credit rating, would be entitled thereto, within the terms of this policy, is increased to not to exceed $15,000, upon the condition, however, that this company shall in no case be liable for any one individual loss exceeding $7,500, but that $7,500 is to follow after loss hy same debtor of the full $7,500 individual limit named in said bond of indemnity of the American Credit Indemnity Co., or so much of it as may remain unexhausted.”

In none of these clauses restricting liability is there anything tending to show that the phrase, “loss hy reason of the insolvency of debtors,” is intended to express any other than its ordinary meaning. The next paragraph is as follows:

“In consideration of the unsettled debts included in the calculation of losses remaining- the exclusive property of the insured, twenty per cent shall be deducted from8tlie gross amount of said unsettled debts, subject to the right of the company to have an assignment of those unsettled debts, on which an amount or settlement offered by debtors has not been accepted by the assured, on payment of the net amount thereof by this company, without such twenty per cent, deduction, or such portion of such debt or debts as shall be covered by this policy, or said company may deduct the said amount or settlement offered in calculating losses thereunder, and leave such debts the property of the Insured.”

The following paragraph, which is found on a subsequent page of the policy, should be read in this connection:

“It is agreed that ‘unsettled debts’ means losses on which the debtor has not made settlement and been discharged, but no such settlement shall be considered discharged that has not paid the insured at least twenty per cent. Where less than twenty per cent, settlement has been made, it shall be calculated as if the insured had received that amount.”

In the case at bar, claim is made for ¡he loss sustained hy the insolvency of four different debtors, with each of whom a settlement was effected hy the insured, and the debtor discharged, upon the payment of more than 20 per cent, in eacli instance. The provisions above cited as to “unsettled debts,” therefore, do not apply.

The policy next contains clauses requiring the insured to notify the company, on its notice of loss blanks, qf the insolvency of any debtor, within 10 days after the insured receives information of insolvency, and that verified proofs of loss, on the blank forms of the company, must he presented within a specified time, “giving in de[532]*532tail the losses sustained, and the facts which bring them within the terms of this policy”; that the insured will give such other information as may be required, will submit to oral examination, and permit an inspection of books, papers, etc. Then follows this paragraph:

“In adjusting losses under this policy, and before determining the percentage of loss to be borne by the company, there shall first be deducted all sums paid, offered, and accepted, settled or secured, and also the value of any security or collateral held by the insured, and all credits, trade discounts, and allowances to which the debtor was entitled, had the debt been paid at the time of the failure; also all cash discounts to which the debtor would be entitled at the time the company settles with the insured.”

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Related

Electric Reduction Co. v. Lewellyn
11 F.2d 493 (Third Circuit, 1926)
Philadelphia Casualty Co. v. Fechheimer
220 F. 401 (Sixth Circuit, 1915)
Sloman v. Mercantile Credit Guarantee Co.
70 N.W. 886 (Michigan Supreme Court, 1897)
American Credit Indemnity Co. v. Wood
73 F. 81 (Second Circuit, 1896)

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Bluebook (online)
68 F. 529, 15 C.C.A. 563, 1895 U.S. App. LEXIS 2890, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mercantile-credit-guarantee-co-of-new-york-v-wood-ca2-1895.