Traders' Ins. Co. v. Pacaud

• Decision Date: 08 May 1894
• Citation: 37 N.E. 460,150 Ill. 245
• Parties: TRADERS' INS. CO. v. PACAUD et al.
• Court: Illinois Supreme Court

150 Ill. 245

37 N.E. 460

TRADERS' INS. CO.

v.PACAUD et al.¹

Supreme Court of Illinois.

May 8, 1894.

Appeal from appellate court, first district.

Assumpsit by A. L. Pacaud and George W. Pacaud against the Traders' Insurance Company upon a policy of insurance on a stock of grain in an elevator. Plaintiffs obtained judgment. Defendant appeals. Affirmed.

Bailey, J., dissenting.

Schuyler & Kremer, for appellant.

Robert Rae, for appellees.

This was an action brought by A. L. Pacaud and George W. Pacaud, a firm doing business under name and style of A. L. Pacaud & Co., against the Traders' Insurance Company on a policy of insurance issued by the defendant to J. H. Million, of the firm of Million & Bott, doing business at Kahoka, in the state of Missouri, for the sum of $3,500, with the recital therein, ‘Loss, if any, payable to A. L. Pacaud & Co., as interest may appear.’ It appears from the record that the policy of insurance was issued on the 25th day of November, 1890, and that, prior to the issuing of the same, John H. Million and John A. Bott were engaged in the grain business, and were running and operating an elevator at Kahoka, in the state of Missouri, and that the policy was taken out to cover the interest of the plaintiffs in the grain in the elevator at the time it was destroyed by fire on the 16th day of December, 1890. The firm of Million & Bott had been engaged in the business of buying and shipping grain for several years before the destruction of the elevator by fire, and, some months before the fire, the plaintiffs had made advances to Million & Bott to that, at the date of the fire, the advances made by them, for which they held warehouse receipts of the firm of Million & Bott, amounted to the sum of $6,200. It further appears that, at the date of the fire, the firm of Million & Bott had in the elevator at Kahoka corn, amounting to 6,858 bushels, and 2,406 bushels of wheat. The policy was issued on the application of plaintiffs, and the premium paid by them. Million & Bott had nothing whatever to do with it, and, so far as appears, no connection with it. They held policies which they had taken out in their own names on the grain, amounting to some $6,700, payable to themselves. The plaintiffs, A. L. Pacaud & Co., first began making advances to Million & Bott on May 1, 1890, and these advances continued during the summer and fall, until they aggregated the sum of $6,200. With these advances Million & Bott purchased grain, and stored it in their elevator at Kahoka, Mo., and, in return for these advances, A. L. Pacaud & Co. received warehouse receipts for the grain so purchased, signed by Million & Bott. The policy contained the following conditions: (1) That ‘if the interest of the assured in the personal property be other than its unincumbered and sole ownership, without such fact being indorsed upon the policy, the same shall be void.’ (2) ‘In case of any other insurance upon the property hereby insured, whether valid or not, or made prior or subsequent to the date of this policy, assured shall be entitled to recover of this company no greater propertion of the loss sustained than the sum thereby insured bears to the whole amount so insured thereon; and it is hereby agreed that in case of assured holding any other policy in this or any other company on the property insured, subject to conditions of average, this policy shall be subject to average in like manner. Any insurance, floating or otherwise, attaching in whole or in part to the property covered by this policy, shall, as between assured and this company, be considered as contributing insurance for the full amount thereof, and liable as such to pay pro rata any loss, total or partial, on the property hereby insured.’

CRAIG, J. (after stating the facts).

The principal grounds relied upon to reverse the judgment of the circuit court are the following: (1) That the interest of J. H. Million in the property destroyed by fire and covered by the defendant's policy was other than its unincumbered and sole ownership, and that he had no insurable interest therein in his own name. (2) That the court erred in not instructing the jury that all the insurance on the property at the date of the fire should contribute to the loss and the plaintiff could only recover from the defendant its proportionate share of such loss. Under the first point relied upon, it is said that the property covered by the insurance was owned by the firm of Million & Bott, and hence the title was not in J. H. Million, and his interest was not an unincumbered and sole ownership within the meaning of the policy. While the grain business at Kahoka was transacted in the name of Million & Bott, upon looking into the evidence in the record it will be found that Bott had no real title to the grain covered by the policy. The elevator where the business was transacted, and the ground upon which it was located, were owned by J. H. Million. Bott advanced no money to carry on the business, but, under an agreement with Million, he took charge...