Argued October 3d 1871
Decided January Term, 1872
John E. Burrill and J.F. Malcolm for the appellant. John M. Scribner, Jr. for the respondent.
At the close of the evidence, the defendant moved for a dismissal of the complaint upon the ground that the defendant only insured the goods of the plaintiff upon the first floor of the building No. 39 Centre street. This motion was denied, and it is upon this point that the question presented for decision arises. No point was made at the trial that the person to whom notice of the change of location of the goods was given was not a proper person for that purpose. It was not suggested that he had not sufficient authority to receive the notice and to act upon it. No such suggestion can now be made. ( Beals v. Home Ins. Co., 36 N.Y., 529.) The case may be stated in this form: The defendant issue to the plaintiff a policy for one year, covering his goods on the first floor of the building 39 Centre street. The year being about to expire, and the goods having, in the meantime, been removed to an upper story of the same building, the plaintiff gives notice to the defendant of such change of location, pays the renewal premium, and receives a renewal receipt referring to No. 39 Centre street and to the former policy, but expressing, in itself, no restriction as to the first floor of the building. Upon the occurrence of a fire, can the plaintiff recover his damages?
An insurance against loss by fire may be made by parol as well as by writing. ( Fish v. Cottenet, 44 N.Y., 538.) A written contract of insurance may be modified by parol without the passage of any new consideration to support it. ( Trustees First Baptist Church v. Brooklyn Fire Insurance Company, 19 N.Y., 305; Blanchard v. Trim, 38 id., 225.) Every renewal of a policy constitutes a new contract, and the old contract may be modified in any of its parts at the pleasure of the parties. A contract is to be construed to mean: 1. What its terms plainly express; or 2. What the promisor intended the promisee to understand that it meant. ( Botsford v. McLean, May, 1870.) Here the insurance had expired, or was about to expire. No loss had been incurred, and no liability existed. Both parties wished the contract to be extended. The plaintiff desired an insurance upon his goods in the upper stories of the building. He had none in the lower story. The company wished to insure him on his goods where they were, not where they were not. Knowing exactly where they were, they receive the compensation for one year's insurance and deliver him the contract before us. I doubt not that they intended to give him a valid insurance, and intended him to believe that he had received such. To suppose otherwise would impute to them a fraudulent disposition, which there is nothing in the case to justify. The parties supposed that the paper delivered reached the case, and intended that it should. We can accomplish this intent by such a construction of the writing. It is as if the defendant had indorsed upon the policy a memorandum that the location of the goods had been changed, or as if notice of that fact had been verbally given and assented to. The contract would then have been for an insurance upon goods on the first floor, modified as to the floor or story. The modification is established in two modes: 1, by the new paper, which, referring to the policy, describes also the goods as being simply in store No. 39 Centre street; and, 2, by the fact that the defendant knew perfectly where the goods were and insured them there, or intended the plaintiff to suppose that it did so insure them. ( Botsford v. McLean, supra.) If the plaintiff had said to the defendant at its office, I have removed my goods to the third story, I wish to continue the insurance for one year, and had paid it thirty dollars, which it had received, it would certainly have been liable in case of a loss. The reference to the first story in the original policy would have been deemed to have been modified by the notice and the acceptance of the premium. The plaintiff has lost nothing by taking a receipt which, so far as it goes, sustains his view of the case.
The only support of this defence is the position that, when it gave the renewal receipt, the defendant did not intend to make any further insurance. This cannot be sustained without an imputation on its honesty. It knew when it took the premium that something was expected of it. Men do not pay moneys to insurance companies gratuitously, without expectation of benefit or return. It knew, also, that the plaintiff had no property on the first floor to be protected. The only possible alternative is the case claimed by the plaintiff, to wit: that the original contract was understood and intended to be modified by applying the policy to the goods on the upper stories. ( Solnies v. The Rutger Fire Ins. Co., 3 Keyes, 416; Mayor v. Exchange Fire Ins. Co., id., 436; Plumb v. Cattaraugus Co., 18 N.Y., 392.)
The order for a new trial should be reversed, and judgment ordered for the plaintiff upon the verdict, with costs.
Order reversed and judgment accordingly.