Lahiff v. Insurance Co. ( 1880 )

Insurance is a contract of indemnity, appertaining to the person or party to the contract, and not to the thing which is subjected to the risk against which its owner is protected. Cummings v. Ins. Co., 55 N.H. 457. The contract of insurance being indemnity against loss, it is essential to its existence that the party insured should have some interest in the thing insured; and when he parts with that interest the contract is necessarily terminated. Wilson v. Hill, 3 Met. 66. In the present case the contract of insurance, by express stipulation, provided that any alienation of the property insured should render the policy void, and the conveyance of the insured premises by the plaintiff to McNamara by warranty deed, in August, 1872, avoided the policy and terminated the contract between the plaintiff and the defendants. When the buildings were destroyed by fire, in October, 1873, there was not only no contract of insurance between the plaintiff and the defendants, but there could be none, for the reason that the plaintiff had no insurable interest in the property.

Neither was there any contract of insurance at the time of the fire between McNamara, the owner of the buildings, and the defendants. McNamara had never made or attempted to make any such contract. The plaintiff's policy of insurance was not transferred by the warranty deed. A contract of insurance does not run with the land and pass as an incident to it. Cummings v. Ins. Co., 55 N.H. 457; Carpenter v. Ins. Co., 16 Pet. 495. The plaintiff had never assigned or attempted to assign his policy to McNamara, so that McNamara at the time of the fire had no claim for insurance upon anybody, and consequently he could assign no such claim to the plaintiff.

If, at the time of the conveyance of the premises, the plaintiff had undertaken to assign and transfer the policy of insurance, it would be material to consider the effect of the knowledge of the defendants' agent of the transaction. The knowledge of the agent might be evidence of the assent of the company to an assignment of the policy to the grantee, if such an assignment had been made or attempted. But in the present case no transfer or assignment was made to which the company could assent, and the agent's knowledge of, the conveyance of the property insured could not have the effect to create a contract of insurance between the parties, or bind the company to a contract that never was made.

Judgment for the defendants.

BINGHAM, J., did not sit: the others concurred.