itself is silent upon the point, because the insurer, knowing the purposes for which the stock is kept by the assured, is presumed to have intended to issue the policy to cover a class of property, rather than certain specific articles, or a specific stock.' In all cases, the nature of the property, the uses to which it is devoted, and the intention of the parties, to be gathered therefrom, in connection with the language of the policy, is to determine whether property acquired by the assured subsequently to the issue of the policy, is covered thereby."

Places within the description, and property covered by.

SEC. 47. A policy is inoperative, except as to goods kept in the place designated in the policy. Locality is an important element in the contract, and when the location of the risk is such as not to fall within the terms of the policy, as where it is described as being at one number of a building, when, in fact, it is in another, the policy is inoperative, although purely a mistake, and the policy cannot be reformed, without showing that the contract was, in fact, to insure it in such other building. Therefore, it often becomes a material question whether the property destroyed, at the time of the loss, was upon the premises, or in the location designated in the policy, and to determine the question extrinsic evidence may be resorted to. Thus, where a policy covered a lot of timber described as being in a certain ship yard, the insurers insisted that they were not liable for timber destroyed outside the boundaries of the ship yard proper. But the court held that evidence was admissible to show whether the parties intended to limit the policy to a ship yard, bounded by exact lines, or to a yard, as in fact used by the assured in conducting their business. And that, upon this question,

1

Crosby v. Franklin Ins. Co., 5 Gray (Mass.) 504; Modinger v. Mechanics' F. Ins. Co., 2 Hall (N. Y.) 490; Wall v. Howard Ins. Co., 14 Barb. (N. Y.) 383; Bigler v. N. Y. Ins. Co., 20 id. 635; Franklin Ins. Co. v. Drake, 2. B. Mon. (Ky.) 51; Peoria, etc., Ins. Co. v. Lewis, 18 Ill. 553; Clarke v. Fireman's Ins. Co., 18 La. 431; Clary v. Protection Ins. Co., 1 Ohio, 227.

2 Mills v. Farmers' Ins. Co., 37 Iowa, 400. In Sawyer v. Dodge Co., etc., Ins. Co., 37 Wis. 503, the policy covered a building and $300 on his grain therein or in stack." on section 19, town 13, range 15, in the town of Chester. Subsequent to the issue of the policy, the assured purchased another small farm in section 17 in the town of Chester, and grain stacked thereon was destroyed by fire, and the court held that it was a loss within the policy, the court holding that it was the intention of the insurer to cover his grain in stack, and that, as the policy did not locate the stacks, it would cover his grain stacked anywhere upon premises owned by him in the town of Chester, whether he owned the premises when the policy was issued or not, and, perhaps, under the rule that in cases where there is ambiguity or doubt as to what was intended, the benefit of the doubt is to be given to the assured, the doctrine can be sustained. Peterson v. Mississippi Valley Ins. Co., 24 Iowa, 494. See, also, Everett v. Continental Ins. Co., 21 Minn. 85. 'Severance v. Continental Ins. Co., 5 Biss. (U. S.) 156.

2

evidence of an usage among the owners of ship yards, in New York, to keep timber upon the streets in the vicinity of their yards, was admissible. In all cases in determining whether the loss is within the policy, so far as location is concerned, the nature of the property, the uses to which it is devoted, and the evident intention of the parties, to be gathered from the language used in connection with the nature of the property and its use, is to control, unless the locality is specifically defined. Thus, in a Massachusetts case, a policy was issued to the plaintiff upon their road furniture, consisting of locomotives, cars, etc., on the line of their road and in actual use." Some wharf owners had constructed a track the whole length of the wharf, connecting the Charlestown Branch Railroad with the plaintiff's road for the purpose of transporting ice. The cars, for the loss of which this action was brought, were drawn over the plaintiff's road and the Charlestown road, and left, one night, at the extreme end of the track, some four hundred and forty feet from the Charlestown road, near a shed used by the occupants of the wharf to store shavings and saw dust. A fire originating in this shed destroyed the cars, and the insurers insisted that they were not liable, because the cars, at the time of the loss, were not upon the plaintiff's road. But the court held that, if the plaintiffs had adopted this track, for all practical purposes, as a part of its line, the fact that the track was owned by the wharf owners would not defeat the liability of the insurers, and that the loss of the cars there, was a loss within the policy.

3

But, in a case where the policy provided that "all the property hereby insured is on premises used or occupied by the assured," ' it was held that the policy could not be construed to cover the property on premises occupied by the plaintiff at the time of the loss, but which were not occupied by it at the time when the policy was issued.

A policy does not cover property unless it is in the place designated in the policy at the time of loss, and this rule is strictly enforced in favor of the insurer, and its entire justice is apparent. Thus, the assured in his application—which was made a part of the policy— stated that the property was in the building in the rear of 82 Eddy street, used as a furnace, and, in point of fact, the property, at the time of the loss, was in a store-house which could not be properly described as in the rear of 82 Eddy street, but in the rear of 82 and 84 of that

1Webb v. Nat. Ins. Co., 2 Sandf. (N. Y.) 397.

*Fitchburgh R. R. Co. v. Charlestown, etc., Ins. Co., 7 Gray (Mass.) 64. 'Providence, etc., R. R. Co. v. Yonkers F. Ins. Co., 10 R. I. 74.

street. Under this state of facts, the court held that the insurers were not liable for the loss.' If property is insured as being in a certain building, the policy only covers the goods in that building, and if the building is torn down, and a new one erected in its place, the policy does not, in the absence of the consent of the insurer to the change, attach to the goods in the new building. Place and location is of the essence of the risk, and the insurers cannot be deprived of the privilege of judging for themselves how and where they will take risks. Thus, in a Pennsylvania case' a firm took out a policy upon merchandise "contained in a new frame barn, wagon and wareroom," situated on an alley and occupied for a warehouse, and subsequently assigned their interest in the policy and property insured. Their assignees erected a brick addition to their store-room upon the front of the lot, on the rear of which the frame barn was erected, extending it back to the alley, and requiring a removal of part of the barn. A loss having occurred, the court held that no recovery could be had for goods lost in the brick addition, and if at all, only for those in the remnant of the frame barn and wareroom as originally erected and insured, and that the fact that the plaintiffs took out and had paid for a carpenter's risk, which purported to be, as appeared by indorsement by the insurer upon the policy "for additional risk in extending store-room,” could not be construed as a consent to the change, or as a consent to cover the goods in the new building. "It is quite extraordinary," said STRONG, J., "that under a policy of insurance upon merchandise in a building particularly described, a recovery has been permitted for a loss in another building erected in part upon the site of the one in which the goods were insured."

Where goods are described as being "contained in" a certain building, the words describing the location are treated as the statement of a fact relating to the risk,' and as amounting to a stipulation that they shall remain there. But in a case recently decided in the Supreme Court of Iowa this is made to depend upon the nature and uses of the property. Thus, in that case, a policy was issued upon

1

Eddy St. Foundry v. Camden, etc., Ins. Co., 1 Cliff. (U. S.) 300; see also Providence, etc., R. R. Co. v. Yonkers Ins. Co., 10 R. I. 74; Liebenstein v. Ætna Ins. Co., 45 Ill. 303; Boynton v. Clinton, etc., Ins. Co., 16 Barb. (N. Y.) 254; Lycoming Ins. Co. v. Updegroff, 40 Penn. St. 311.

2

4

Lycoming Ins. Co. v. Updegraff, 40 Penn. St. 311; 4 Bennett's F. I. C. 565. Wall v. East River Ins. Co., 7 N. Y. 370.

Houghton v. Manuf. F. Ins. Co., 8 Met. (Mass.) 254; Boynton v. Clinton, etc., Ins. Co., 16 Barb. (N. Y.) 254.

McCluer v. The Girard F. & M. Ins. Co., 48 Iowa, 349.

99

6

"a phæton "contained in a frame barn." It was burned while in a carriagemaker's shop for repairs. The court held that it was a loss within the policy, holding that from the very nature of the property and the uses to which it was devoted, location was not of the essence of the risk, and, taken in connection with the nature and uses of the property insured, amounted only to a warranty that the phaton would be contained in the barn and would remain there except when absent for temporary purposes. "In the case at bar," said ADAMS, J., "there is nothing to indicate that it was the intention to insure the contents of the barn as such. Each policy must be construed according to the intention of the parties as manifested by all its terms. We are of the opinion, therefore, that while the words, contained in a barn,' describing it, are words relating to the risk and constitute a warranty that the carriage would continue to be contained in the barn, they mean only that the barn described was their place of deposit when not absent therefrom for temporary purposes incident to the ordinary uses and enjoyment of the property." But the doctrine of this case is believed to be at variance with a long line of authorities, and to extend the effect of a policy by implication to an unwarranted length. It converts an ordinary policy into a floating contract, and that, too, in defiance of the language of the contract and the ordinary rules of construction. Upon the principle upon which this case proceeded, a policy upon "a horse kept in a brick stable in the rear of his dwelling" would cover the horse in any stable in which he might be placed during the life of the policy. A policy upon machinery "in the frame woolen mill, etc.," if removed to another building, because the building in which it was then used had become unfit for its use there, would still be covered. The doctrine is forced, inconsistent with principle, and wholly unsustained by authority, and courts will be slow to abandon the time-honored doctrine previously expressed, that location is of the essence of the risk, and, in the absence of words covering the property, by fair construction, outside of the locality designated, must be treated as only covering it when at the place named. It is true that it was in the contemplation of the parties that the phaton would not be kept constantly in the barn during the entire life of the risk, but it is equally clear from the words of limitation used,"contained in," that the insurer intended to take only the risk of the destruction of the phaton when in the identical barn in which it was described as being when the risk was taken. No special or general usage was shown, peculiar to such risks, bringing it within the rule of Younger v. Royal Exchange Assurance Co., referred to in

another section. The language of the policy is specific and susceptible of but one interpretation. It is equivalent to an agreement that, during the life of the policy the insurer will indemnify the assured against the destruction by fire, of the phæton, in the barn describe l, but not e sewhere. The court say that the words "contained in," amount to a warranty that the phaton shall be kept in the barn except when absent for temporary purposes." Under this ruling, if the assured employed the phaton for the entire year in making a journey through the country, it being a purpose for which such vehícles are employed, the insure would be liable for its destruction by fire, in any barn or other building in which it might be placed, during the temporary rests made by the assured in his journey, without any reference to the difference in hazard that might thus exist. We are inclined to the opinion that there is neither reason or authority for saying, in view of the words of limitation used, that the parties contemplated any other risk to the property than such as it was subjected to in the place described.' The language of the policy must first be regarded, and if it definitely fixes the ocation of the risk, the policy does not attach if the property is destroyed outside the locality designated. As when the property is described as being "upon premises occupied by the assured," the policy relates to premises occupied by the assured at the issuance of the policy, and not to any premises which may subsequently be occupied by the assured during the life of the policy. The rule is, that the language of the policy is first to be looked to, and if, by the well settled rule of construction, the intention of the parties is not clear, then extrinsic evidence may be resorted to; but if the language is plain and unambiguous, it must control, and extrinsic evidence is not admissible to control its construction."

Permission to remove goods, effect of.

SEC. 48. The fact that permission to remove goods has been given, will not relieve the company from liability for a loss occurring, even though the goods are not removed. Permission to remove, does not obligate the assured to remove them, but leaves it optional with him to do

'Contra and holding a doctrine as stated in the text, see Annapolis R. R. Co. v. Balt. Ins. Co., 32 Md. 37; Providence, etc., R. R. Co. v. Young, 10 R. I. 74; Lewis v. Springfield F. & M. Ins. Co., 10 Gray (Mass.) 159; Lycoming Ins. Co. v. Updegraff, 40 Penn. St. 311; Boynton v. Clinton, etc., Ins. Co., 16 Barb. (N. Y.) 258; Hartford Fire Ins. Co. v. Farrish, 73 Ill. 176.

Providence, etc., R. R. Co. v. Yonkers F. Ins. Co., 10 R. I. 74.

* Savage v. Howard Ins. Co., 44 How. Pr. (N. Y.) 4

'Hough v. People's Ins. Co., 32 Md. 398