Dunne v. Phoenix Insurance

TYLER, P. J.

Action on a fire insurance policy.

So much of the facts as are necessary for a discussion of the principles involved may be stated as follows: One Brown, assignor of plaintiff, was doing business under the fictitious name National Upholstery Supply Company. He had dealings with one Smith, an agent representing Kohlman Moss and Cotton Felt Manufacturing Company, which resulted in a contract of sale of eighty-three bales of moss, used in the upholstery of furniture. The bales of moss were shipped from New Orleans to San Francisco. Prior to the shipment, Smith had advised his firm concerning the transaction and received certain instructions from it which he immediately communicated to Brown in writing. The letter contained the terms and conditions of sale and was in substance as follows: Under telegraphic authority from my prinQipals, I am pleased to confirm sale to your firm of approximately 14,000 lbs. of moss at ten cents per pound delivered in San Francisco; drayage, storage, insurance at your expense; terms of payment cash against delivery orders on warehouse, details in this regard to be handled through the banking connections of the seller; shipment directed to Central Warehouse & Drayage Co. All the documents in connection with the transaction were forwarded to The Anglo & London Paris National Bank and delivered by it to the warehouse company. After the arrival of the moss Brown visited the warehouse, inspected the same and found it to be satisfactory. He was desirous of withdrawing ten bales and consulted the bank concerning the matter. He was referred by it to the warehouse company. Under arrangements with said company, he paid for and withdrew the bales required. After the arrival of the moss the warehouse company caused it to be insured. The first intimation Brown had that the property was insured was when he received'a bill for the amount of the premium. At the time af the application on the part of the warehouse company

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for insurance on the moss, Brown made no representations or warranties concerning the title to the moss and in fact, as stated, he knew nothing about the insurance, nor was he acquainted with the agent who caused the policy to be issued. The policy was issued upon facts ascertained by defendant company without any communication to or from Brown. Shortly after the issuance of the policy of insurance, the moss was damaged by fire. Brown immediately wired the seller and advised it that the moss was damaged and he could not accept the same. The seller insisted that the transaction amounted to a completed sale and that as the title was in Brown he should suffer the loss. Upon consulting his attorney he was advised that the loss fell upon him. Thereafter Brown presented preliminary proof of loss in which he stated that title to the moss was in him subject to a possessory lien for payment. Brown then possessed the damaged moss as owner, with the knowledge of the seller, and sold the same for salvage.