Stewart v. Home Fire & Marine Ins. Co. of California
| Decision Date | 16 June 1924 |
| Docket Number | No. 44.,44. |
| Citation | 124 A. 773 |
| Parties | STEWART v. HOME FIRE & MARINE INS. CO. OF CALIFORNIA. |
| Court | New Jersey Supreme Court |
Action by William Chandler Stewart against the Home Fire & Marine Insurance Company of California. Verdict for plaintiff. On defendant's rule to show cause. Rule made absolute.
Argued February term, 1924, before GUMMERE, C. J., and MINTURN and BLACK, JJ.
Edwards & Smith, of Jersey City, for the rule.
Katzenbach & Hunt, of Trenton, opposed.
This action was brought to recover on a policy of insurance covering an automobile, the title to which was in the plaintiff, and which he had sold under a conditional bill of sale to a man named Straus, one of the provisions of the bill being that the title to the car should not pass to the purchaser until the whole of the purchase price should be paid, notwithstanding that immediate possession was to be given to the purchaser. The policy was issued in the names of Stewart and Straus, as their respective interests might appear; and one of the perils insured against was theft, robbery, or pilferage, excepting, however, the wrongful conversion or embezzlement by the vendee in possession under a conditional sale agreement. The trial resulted in a verdict in favor of the plaintiff and the present rule to show cause was thereupon allowed to the defendant.
The case made by the plaintiff was that, after the car had been delivered to Straus and had been in his possession for some little time, he took it to New York, and there sold it to a man named Schane, who was in the business of buying and selling secondhand cars; that the latter paid the agreed upon price for it, and that thereupon the car was delivered to him; that this transfer by Straus was in violation of one of the provisions of the bill of sale which prohibited him from transferring his interest in the car to a third person unless he first obtained the consent of the plaintiff; that a few days after the sale to Schane one Kelly, an employee of the plaintiff, was informed of the fact, and that he thereupon demanded the surrender of the car by Schane; that the latter did not comply with the demand, apparently being unwilling to part with the car until he had consulted with a lawyer and ascertained whether he was under a legal obligation to do so; that subsequently Schane concluded he had no right to retain the car, and turned it over to the plaintiff.
These facts, the plaintiff contended, demonstrated that there had been a theft...
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...is, a felonious taking of it from one who has both the actual possession and the apparent right of possession. Stewart v. Home Fire & Marine Ins. Co., 124 A. 773, 2 N.J.Misc. 515.' 'The words * * * must be deemed to have been used in their general and popular sense rather than with specific......
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