THIS was a writ of error to the circuit court of the county of Alexandria in the district of Columbia.
The action was brought, originally, by Lawrence & Poindexter, on a policy of insurance for $7000 against fire on a mill.
The declaration, after setting out the contract of insurance, avers that the plaintiffs 'were interested in and the equitable owners of the insured premises at the time the insurance was made.' After stating the loss by fire on the 14th February 1824, as within the policy, there is the following averment: 'of which said loss, together with the proofs thereof in conformity with the conditions subjoined to the said policy, the defendants, on the 20th February 1824, at, & c. had due and regular notice.'
Upon the trial of the general issue, verdict and judgment passed for the surviving plaintiff, Lawrence, for the whole amount of the insurance, under certain instructions from the court, stated in two bills of exceptions tendered by the defendants, now plaintiffs in error.
During the progress of the suit, Poindexter, one of the plaintiffs, died, and the suit instituted in their joint names, was carried on in the name of the survivor, for the use of his assignee.
The evidence exhibited to the jury on the part of the plaintiff, showed that Lawrence & Poindexter, by their agents, had made application in writing to the defendants for insurance, in these words:
'What premium will you ask to insure the following property, belonging to Lawrence & Poindexter, for one year, against loss or damage by fire, on their stone mill, four stories high, covered with wood, situated on an island about one mile from Fredericksburg, in the county of Stafford? The mill called Elba; seven thousand dollars is wanted; not within thirty yards of any other building, except a cornhouse, which is about twenty yards off.'
The premium demanded, was one hundred and five dollars.
The application was made upon a printed form, of which blanks are kept at the insurance office, and filled up as required. At the foot of this document was the following:
N. B. Persons offering for insurance are requested to be particular in their descriptions, more especially of what materials the walls and roofs are constructed, &c.
The policy, an unsealed instrument, was executed in the usual form, containing the several stipulations, provisos, and exceptions, usual in fire policies; and among others, the following:
'And it is understood and agreed, as well by this company as by the assured named in this policy, and all others who may become interested therein, that this insurance is made and accepted in reference to the conditions which accompany these presents; and in every case the said conditions are to be used to explain the rights and obligations of the parties, except so far forth as the policy itself expressly declares those rights and obligations.'
Upon the back of this policy were printed the 'Fundamental rules of the Columbian Insurance Company,' and also, the 'Rates of annual premiums to be paid for insurance,' among which were:
'1. Persons desirous to make insurance on buildings, are to state in writing the following particulars, viz. Of what materials the walls and roofs of each building are constructed, as well as the construction of the buildings contiguous, thereto–whether the same are occupied as private dwellings or how otherwise–where situated–also the name or names of the present occupiers.
'Each building must be separately valued, and a specified sum insured thereon; and in like manner a separate sum insured on the property contained therein.
'All manufactories which contain furnaces, kilns, stoves, ovens, or use fire heat, are chargeable at additional rates.
'In the assurance of goods, wares and merchandise, the building or place, in which the same are deposited, is to be described, also whether such goods are of the kinds denominated hazardous, and whether any manufactory is carried on in the premises. And if any person or persons shall insure his or their buildings or goods, and shall cause the same to be described in the policy otherwise than as they really are, so as the same be charged as a lower premium than would otherwise be demanded, such insurance shall be of no force.
'2. Goods held in trust, or on commission, are to be insured as such, otherwise the policy will not extend to cover such property.
'9. All persons assured by this company, sustaining any loss or damage by fire, are forthwith to give notice to the company, and as soon as possible thereafter, deliver as particular an account of their loss or damage, signed with their own hands, as the nature of the case will admit of, and make proof of the same by their oath or affirmation, and by their books of accounts, or other proper vouchers, as shall be reasonably required; and shall procure a certificate under the hand of a magistrate or a sworn notary, of the town or county in which the fire happened, not concerned in such loss, directly or indirectly, importing that they are acquainted with the character and circumstances of the person or persons insured, and do know, or verily believe, that he, she, or they, really, and by misfortune, without any kind of fraud or evil practice, have sustained by such fire, loss or damage to the amount therein mentioned; and, until such affidavit and certificate are produced, the loss claimed shall not be payable; also, if there appears any fraud, the claimant shall forfeit his claim to restitution or payment, by virtue of his policy.'
The property intended to be insured, was proved to be a square building, four stories high, built of stone to the square or eaves, the roof being framed, and covered entirely of wood, the two gable ends running up perpendicularly from the stone wall to the top of the roof, they being constructed of wood.
On the 14th of February 1824, the property was destroyed by fire; and the following documents were given in evidence, to sustain the right of the plaintiffs to demand payment of the loss; the same having been exhibited as 'the preliminary proof of the loss claimed under the policy.'
Fredericksburg, February 16, 1824.
To the president, directors, and company, of the Columbian Insurance Company of Alexandria.
Gentlemen;–We regret that we have now to inform you of the total destruction of our mill by fire, on the night of the 14th inst., which was insured in your office, the particulars of which we will forward you as soon as we can prepare the necessary documents as laid down in the conditions accompanying the policy.
The affidavit of the said Lawrence & Poindexter, with the certificate of Murray Forbes, was annexed.
We hereby certify, that by the burning of our mill, situate on an island in the county of Stafford, about one mile from the town of Fredericksburg, and state of Virginia, called the Elba mill, four stories high, the walls of stone and covered with wood, on which seven thousand dollars were insured by us in the office of the Columbian Insurance Company of Alexandria, on the 9th day of April last, per policy No. 279, and which was destroyed by fire on the night of Saturday last, the 14th inst., we lost, or were damaged at least twelve thousand dollars, exclusive of the contents of said mill. We are entirely ignorant of the circumstances which occasioned the fire, and we further certify that we have no other insurance, directly or indirectly on the aforesaid property, except the above mentioned.
JOSEPH W. LAWRENCE. THOS. POINDEXTER, JUN.
Commonwealth of Virginia, Stafford County, to wit:
Joseph W. Lawrence and Thomas Poindexter this day personally appeared before me, a justice of the peace for the said county, and made oath, in due form, that the above certificate contains the truth to the best of their knowledge and belief.
I, Murray Forbes, a magistrate duly commissioned, in and for the county of Stafford, and state of Virginia, do hereby certify that I am acquainted with Joseph W. Lawrence and Thomas Poindexter; that the fire originated in their mill burnt on the night of the 14th inst. by accident, or without fraud or design on their part, as far as I know or believe; and that the damage or loss they sustained by the said fire is at least ten thousand dollars. And I further certify, that the said mill was not within thirty yards of any other building, except a corn house, which was about twenty yards off.
The affidavits of Thomas Sedden and James Vasse, were annexed.
I, Thomas Sedden, of the town of Fredericksburg, in the county of Spottsylvania, and state of Virginia, do hereby certify, that I am well acquainted with the mill called and known by the name of the Elba mill, owned and occupied by Joseph W. Lawrence and Thomas Poindexter, situate on an island in the county of Stafford, about one mile from the town of Fredericksburg; that the said mill was built of stone four stories high and covered with wood; that between ten and eleven o'clock on Saturday night, the 14th inst., I was alarmed by the cry of fire, which I soon ascertained to be the mill aforesaid; that I have since viewed the ruins, and am of opinion that it would require at least ten thousand dollars to rebuild the same, and restore the proprietors in the situation they were in previous to the said fire; that I have no knowledge or idea how the fire originated.
Commonwealth of Virginia, Stafford County, to wit:
Thomas Sedden this day personally appeared before me, one of the commonwealth's justices of the peace of the county aforesaid, and made oath to the truth of the foregoing certificate signed by his hand.
I, James Vasse, of the town of Falmouth, in the county of Stafford, and state of Virginia, do hereby certify, that I am well acquainted with the mill called and known by the name of the Elba mill, owned and occupied by Joseph W. Lawrence and Thomas Poindexter, situate on an island in the county of Stafford, and about one mile from the town of Fredericksburg; that the said mill was built of stone four stories high and covered with shingles; that between the hours of ten and eleven o'clock on Saturday night, the 14th current, I was alarmed by the cry of fire, which I soon ascertained to be the mill aforesaid; that I have since viewed the ruins, and I am of opinion that it will require the sum of ten thousand dollars, or thereabout, to restore the proprietors to the situation they were in previous to the said fire; farther, that I have no knowledge whatever how the fire originated.
Commonwealth of Virginia, Stafford County, to wit:
James Vasse this day personally appeared before me, one of the commonwealth's justices of the peace of the county aforesaid, and made oath to the truth of the foregoing certificate signed by his hand.
The plaintiff also gave in evidence the following extracts from the minutes of the proceedings of the insurance company in relation to the claim of payment for the loss.
Friday, 20th February 1824.–Lawrence & Poindexter. Claim made by them this day by their attorney, Anthony Buck, with the policy and certificates of loss by fire, on policy No. 279.
On the application of Anthony Buck, leave is given to Joseph W. Lawrence and Thomas Poindexter to assign to William J. Roberts policy No. 279, effected in this office, without prejudice to any defence which this office may have against the payment of the sum insured, or to the claim of John H. Ladd, & Co. under their attachment heretofore served on the president of this company.
Saturday, 13th March 1824.–Ordered, That the secretary address a letter to John Scott, to require the title of Lawrence & Poindexter to the Elba mill.
Thursday, 1st April 1824.–The following papers were this day received, to wit: A letter from John Scott, esq. Fredericksburg, covering copies of a deed from William and George Winchester to Joseph Howard and Joseph Lawrence; an agreement between Joseph Howard and Joseph Lawrence; and an agreement between Joseph Lawrence and Thomas Poindexter, Jun.
Friday, 16th April 1824.–In the case of Lawrence & Poindexter, Ordered, that a copy of the mortgage to the banks, proof of the execution of the contract between Lawrence and Poindexter on the day it bears date, and a copy of the notes in the bank be required.
Thursday, 22d April 1824.–Lawrence & Poindexter. The following papers were presented by R. I. Taylor, esq. inclosed to him by Mr. John Scott, Fredericksburg:–Deed of trust from Joseph Howard and Mary his wife, and Joseph W. Lawrence, to William J. Roberts, for the benefit of the banks, dated 13th May 1814.
An agreement between Joseph W. Lawrence and Thomas Poindexter, dated 28th November 1822.
A copy of a note drawn by Howard & Lawrence, dated 10th March 1824, to the Farmer's Bank of Virginia, at ...