Wynne v. Liverpool
| Decision Date | 30 June 1874 |
| Court | North Carolina Supreme Court |
| Parties | S. D. WYNNE v. LIVERPOOL and LONDON and GLOBE INSURANCE COMPANY. |
The legal effect of an amendment, is, to put the case in the same plight and condition as if the matter introduced by the amendment had been inserted in the original pleading at the outset.
A clause in an application for a policy of insurance, that the party insured was to take an inventory of his stock every three months, is not a condition by which the policy was to be defeated and become of no force.
The finding of a jury that the loss of the plaintiff was $3,062 of which the sum of $462 is the value of the store, and $2,600 the value of the stock on hand, should be read, is the damage on account of the destruction of the store and goods.
Counsel for appellants are not justifiable in making up a case in such a way as to leave the Court in doubt as to the point intended to be made; every intendment must be made against the appellant.
CIVIL ACTION for the recovery of a loss by fire, tried by His Honor, Judge Moore, at Spring Term, 1874, of TYRRELL Superior Court.
Plaintiff brought this action upon a policy of insurance issued by defendant, against the loss by fire of plaintiff's store and stock of goods.
The answer admitted the execution of the policy, but alleged that the contract of insurance was subject to other terms, conditions and limitations and restrictions, than those set forth in the complaint, viz: To certain conditions and warranties that were contained in the application of the plaintiff, a copy of which was annexed to the answer.
One among the issues submitted by the plaintiff to the jury was the following to wit:
Was the said contract of insurance subject to other terms, conditions, limitations and restrictions, than those set forth in the complaint; and if so, does the written and printed paper writing attached to the answer contain them? (The said condition, &c., are noticed and sufficiently set out in the opinion of the Chief Justice.)
The defendant introduced the application as evidence, and proved its execution by plaintiff, and moved that the plaintiff be called. Upon motion of plaintiff's counsel, the Court permitted him to amend his complaint by setting forth the application, and making it a part thereof. Immediately on amending his complaint the plaintiff submitted his case to the jury.
Before the complaint was amended, the plaintiff stated (in answer to a question of his counsel) that he had complied with all the conditions of the policy of insurance; and before he left the stand, (upon his cross-examination,) the original application for insurance was handed to him, and his signature thereto acknowledged; he also stated that he had not taken an inventory of stock after 1st January, and that he expected, when he entered business, to keep up the annual average value of his stock at $4,000, but he did not state that he had done so.
The defendont asked the Court to charge that there was no evidence that the plaintiff had complied with and performed all the warranties as contained in his application; and that as the averments and performance of these warranties are conditions precedent to the right of action, the plaintiff cannot recover.
His Honor, the case states, refused the instruction because there was some evidence as before stated. Defendant excepted because the evidence alluded to was as to the conditions of the policy, and before the application had been set out by plaintiff in his complaint; and inasmuch as there was no evidence offered after the amendment, as to the performance of the conditions and warranties, the plaintiff could not recover.
In the application, plaintiff represented the store to be worth in cash, $700. It was in evidence on the part of the plaintiff, that the store was built by him on leased ground, and that his lease was for two years, with the privilege of five. A witness introduced by the plaintiff stated that if he desired to go into business at the place, he would give $700 for the store. On his cross-examination, this witness stated that he was not a merchant, nor did he know the cost of building houses.
The mechanic who built the store was introduced by defendant, who stated the actual cost of building the same, everything included, was $226, and that he would replace it for that amount, or for $250 at the outside. This evidence was corroborated by two other mechanics.
Among the issues submitted to the jury were the following:
Was the cash value of the store $700, and the cash value of of the stock $3,500 at the time of the insurance?
What was the loss to the plaintiff by reason of the fire?
Defendant asked the Court to charge that under the contract the company had the right to rebuild, and that therefore the cash value of the store, within the legal intendment of the contract of insurance was, what it was worth to rebulld it; and that in estimating the value of the store the jury could not take into consideration the location and favorable circumstances for trade, for that is outside of the cash value, as the fire can not destroy location, &c.; and that if the jury believe the mechanics who say that the store can be replaced for $250, the plaintiff cannot recover.
His Honor refused so to charge, but instructed the jury that in estimating the cash value of the store, then and there, the location and favorable circumstances for trade, should not be considered, but find what it would have brought in cash. Defendant excepted.
The Court was further asked by defendant to charge that from the application it appeared that an inventory was to be taken every three months by the plaintiff; that it was taken on the 1st January, 1872, and that the fire occurred more than three months from that time, to wit: on the 4th April, 1872; and inasmuch as plaintiff swore that he made no other inventory than the one in January, he did not comply with the conditions set forth in the application, and could not recover. Instructions refused by His Honor, and defendant again excepted.
To the first issue, the jury found the value of the store to be as stated in the application: And to...
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