93 U.S. 527 (1876), Home Ins. Co. v. Baltimore Warehouse Co.

Citation:93 U.S. 527, 23 L.Ed. 868
Case Date:November 20, 1876
Court:United States Supreme Court

Page 527

93 U.S. 527 (1876)

23 L.Ed. 868




United States Supreme Court.

November 20, 1876


ERROR to the Circuit Court of the United States for the District of Maryland.

This was assumpsit by the defendant in error, commenced June 2, 1873, on a policy of insurance issued to it Dec. 7, 1869, by the plaintiff in error, and containing, among others, the following provisions:----

'By this policy of insurance the Home Insurance Company, in consideration of $100 to them paid by the insured hereinafter

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named, the receipt whereof is hereby acknowledged, do insure Baltimore Warehouse Company against loss or damage by fire to the amount of $20,000, on merchandise hazardous or extra hazardous, their own or held by them in trust, or in which they have an interest or liability, contained in that part of the State tobacco-warehouse No. 2, used by them, lying between Frederick-Street Dock and Long Dock, separated by a street from the south end of the Maryland Sugar Refinery. Other insurance permitted without notice, unless required.

'To cover whilst on the street and pavement around said warehouse. As per application.

'And the Home Insurance Company above named, for the consideration aforesaid, do hereby promise and agree to make good unto the said assured, their executors, administrators, or assigns, all such loss or damage, not exceeding in amount the sum insured, as shall happen by fire to the property as above specified during one year,--to wit, from the seventh day of December, 1869 (at twelve o'clock at noon), until the seventh day of December, 1870 (at twelve o'clock at noon),--the said loss or damage to be estimated according to the actual cash value of the said property at the time the same shall happen; and to be paid within sixty days after due notice and proof thereof made by the insured, in conformity to the conditions annexed to this policy, unless the property be replaced by similar property of equal value and goodness, or the company have given notice of their intention to rebuild or repair the damaged premises.'

Also the following conditions:----

'9. Persons sustaining loss or damage by fire shall forthwith give notice thereof in writing to the company, or its agent, and as soon after as possible they shall deliver as particular an account of their loss and damage as the nature of the case will admit, signed with their own hands. And they shall accompany the same with their oath or affirmation, declaring the said account to be true and just; showing also the ownership of the property insured; what other insurance, if any, existed on the same property, and giving a copy of the written portion of the policy of each company; what was the whole cash value of the subject insured; what was their interest therein; in what general manner (at to trade, manufactory, merchandise, or otherwise) the building insured or containing the subject insured, and the several parts thereof, were occupied at the time of the loss, and who were the occupants of such building;

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and when and how the fire originated, so far as they know or believe.'

'13. It is furthermore hereby expressly provided, that no suit or action of any kind against said company, for the recovery of any claim upon, under, or by virtue of this policy, shall be sustainable in any court of law or chancery, unless such suit or action shall be commenced within the term of twelve months next after any loss or damage shall occur; and in case any such suit or action shall be commenced against said company after the expiration of twelve months next after such loss or damage shall have occurred, the lapse of time shall be taken and deemed as conclusive evidence against the validity of the claim thereby so attempted to be enforced.'

By an act of the general assembly of Maryland, passed at the January session, 1867, the defendant in error was chartered for the purpose of carrying on the business of warehousemen and forwarders in the city of Baltimore. It was 'expressly prohibited from buying or selling any goods, wares, or merchandise, or other property, as dealers or on commission,' but was authorized to receive and collect the usual and customary rates of dockage, wharfage, storage, and lighterage on all goods deposited with it, which, together with all charges and expenses incurred for labor or otherwise in the receipt, delivery, or custody of such goods, was made a lien thereon.

The tenth section of the charter was as follows:----

'The receipts, warrants, or warehouse certificates issued by this corporation for goods, wares, and merchandise in their possession or under their control, shall, in all cases, be signed by the president or vice-president and secretary of the corporation, and attested by the corporate seal; and copies thereof shall be registered in two books kept for that purpose, one of which books shall be kept by each of the officers whose signatures are to be affixed as aforesaid, which books shall be at all times open for the inspection of dealers with said corporation. The said receipts, warrants, or certificates may be transferred by indorsement thereof; and any person to whom the same may be transferred shall be deemed and taken to be the owner of the goods, wares, and merchandise therein specified, so far as to give validity to any pledge, lien, or transfer made or created by such person or persons; but no property shall be delivered except on surrender and cancellation of said original receipt, warrant, or certificate. Every such receipt, warrant, or warehouse

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certificate shall contain on its face a notice that the property mentioned therein is held by this corporation as bailees only, and is not insured by this corporation.'

The charter was, in 1870, amended so as to authorize the corporation 'to make advances upon all goods, wares, merchandise, or other property which may be received by or stored with it.'

It was admitted at the trial, that, on the 18th of July, 1870, State tobacco warehouse No. 2 was destroyed by fire; that, at the time of the fire, property was stored by the following persons, in accordance with receipts given by the defendant in error to them respectively, of which the subjoined is a specimen:----


The property mentioned in this receipt is held by this corporation as bailees only, and is not insured by this corporation.


Incorporated 1867.

No. 1168.]

BALTIMORE, May 24, 1870.

Received by the Baltimore Warehouse Company, in store at No. 2 tobacco warehouse, from Hough, Clendening, & Co., one hundred and nine bales cotton, to be delivered according to the indorsement hereon, but only on the surrender and cancellation of this receipt, and on the payment of the charges payable thereon.

Marks. x Q. EXPENSES. Storage 25c. per mo. Labor........... Cooperage....... Gauging......... Weighing........ Elevator........ Commission...... Advances........

JAMES HOOPER, president.

JAMES B. EDWARDS, Secretary and Registrar.



BALTIMORE, ----- 18 --.

Deliver to the order of ----- the within-described merchandise.



Hough, Clendening, & Co., cotton $52,863.00

Hawkins, Williamson, & Co., cotton 26,861.16

Elliott Bros., 8,188.81

McCloud & Co., cotton 1,862.35

F. L. Brauns & Co., cotton 2,888.00

W. B. Hooper, cotton 320.97

F. W. Beck & Co., tobacco 6,000.00

Total $98,984.29

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That all of said property was destroyed by fire on the 18th of July, 1870, except that embraced in a salvage statement made by a committee appointed by the underwriters, and signed by George B. Coale for the committee.

Previously to and at the time of said fire, the defendant in error held a policy, substantially in the same form as that now in suit, issued by the Associated Firemen's Insurance Company of Baltimore, in the sum of $10,000. The following policies in the names of other parties as assured, covering only specific portions of said property hereinafter mentioned, were in force, viz.:----

On the property stored by Elliott Bros., three policies of the following companies, viz., in name of Elliott Bros.:----

W. H., Potomac Ins. Co. for .. $14,000 W. H., Peabody Ins. Co. for .... 3,500 W. H., Royal Ins. Co. for ...... 3,400 ------- $20,900

On the property stored by F. W. Beck & Co. policies in their name as assured in----

W. H., The People's Ins. Co. for $6,000

On that of Hough, Clendening, & Co. in their name as assured:----

W. H., The Hartford Ins. Co. for $3,500

W. H., The Franklin Ins. Co. for 3,500

W. H., The People's Ins. Co. for 2,500

W. H., The Potomac Ins. Co. for 900

W. H., The Peabody Ins. Co. for 6,000

W. H., The City Ins. Co for 7,700

W. H., The Washington Ins. Co for 7,300

W. H., The Atlantic (1 $3,500 and 1 for $6,000)= 9,500

W. H., The Consolidated Ins. Co. for 12,100

W. H., The Home Ins. Co. of Baltimore for 6,000

W. H., The Citizens' Ins. Co. of Baltimore for 1,400

Said last-mentioned policies covered 676 bales of cotton, if the two $6,000 policies of the Peabody and Atlantic were each on 110 separate bales, and 566 bales, if they both were only the same 110 bales, and that said cotton was worth at the time of the fire $78.32 per bale.

On the property stored by Hawkins, Williamson, & Co. in their name as assured:----

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Royal Ins. Co. for $10,000

Western Ins. Co. for 6,500

W. H., Connecticut Ins. Co. for 16,000

W. H., Peabody...

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