RoOBlf WILLIAMS INS.
(Circuit Court, D. Nt/IJJ BamjJ8hitre. June 29, 1880.1
1. ctlowTRACTS-CONSTRUCTION. .· .. Where the meaning of the terms of a written ,contract is clear, evidence of extrinsic circumstanc'es is inadmissible tor the purpose of varying such ing. .
8. SAME-FlUE lNSUR>AlWE-MORTGAGOR AND MORTGAG1l:E.
The policy in suit, by which the dwelling-house and furniture of C. was insured, was payahle,. in case of loss, to S. One of the conditions in the policy that if the assured should sUbsequently make any other imlUrance on the property, without the assurer's cousent, the policy should be void. There was evidence that S., the plaintifi, held a mortgage on.thebouse, and that he prpcured the insurance and paid the premium. C. procured insurance on his interest as mortgagor after the date of this policy.. Held,the meaning of the contract clearly is that C. is the assured; and, this being so, evidence of extrinsic circumstances is inadmissible to change it.
By the policy in 8uit, Abraham Cole was insured $1,500 on his two· story dwelling-house, ell, and barn connected, occupied in the sum· mer season for a summer boarding-house, and in the winter by the assured as a dwelling-house, situated near Gorham, New and $500 on household furniture in the 'bouse and ell, pa.yable iri case of 10S3 to George B. Sias, "as his interest may appear." [t stipulated that "if the assured shall have, ot shall hereaftet any other insurance upon the property insured, or any part thereof, without the consent of the company in writing, IJ the policy should be void. There was evidence that Sias, the plaintiff, held a mortgage on the house j that he had procured the insurance through' a sub· agent of the company and paid the premium. The principal agent, who issued the policy at the request of the sl1b-agent, did not know who procured the policy or who paid the premium. Cole testified that he procured insurance on his interest as mortgagor after the date of the policy. The learned judge ruled, for the purposes of the trial, that the insurance was on the interest of the plaintiff as mortgagee, and would not be affected by the insl1rance afterwards made by Cole j and a verdict was taken for the plaintiff, subject to the opinion of the court upon this question. The d'efendants moved' for a new trial be· fore Judge Lowell. S. C. Eastman, of Concord, for defendant. W. J. Copeland, of Great Falls, for plaintiff. LOWELL, C. J. This case has been thoroughly argued, and all the authorities which I shall refer to have been cited by counsel. The first point taken by the plaintiff is that the construction' of the
, policy is to be governed by the laws of New Hampshire, which is true in a certain sense; and'itmay' bll that the statutes of New Hampshire will give some assistance to the plaintiff in case of a new trial. But the decisions of the' cOllrts of New Hampshire, excepting upon points. a!ising under a, are not binding, authorities in the courts orthe United States inaacertaining the meaning and ,effect of a contract of insurance Cnrpenter v. P.rovidence Ins. Co. 16 Pet. 50l. I do not understand that this point is of any special importance in this case. In so far as the tight to maintain action at common law is concerned, the law of New HampshIre will govern,and that law, as I understand it, permits an action by the mortgagee when he has paid the premium. 55 N. H. 249. Thelaw of this country has been settled, with' little or no difference of opinion, so far as I know, that when the interest of an owner ofah equity of redemption is insured, and the loss is made payable to the mortgagee by the terms of the policy or by an assignment olthe poricy, an equitable right is maintained, which is subject to be defeated by his acts in contravention of its copditions. ,It i!> enough to cite decisions which must my own. ,Bates v. Equitable Ins. Co. 3 Cliff. 215; 10 Wall. 33; v., North British Co. 1 Holmes, 110, 111, per Shepley, J. , The phrl:l;se, "as hiE! illterest may appear," does not affect this tion.,It means that the pay the .lp.ortgagee to the extent of his lien or charge upon the premises. Franklin Sav ·.Inst. v. Cent. ]dut. Co. 119 Mass. 240; Foote y.. Ha.rtjordFire, [ns. Co. Id.259: The fact that the mortgagee procure9, the policy and paid the pre. mium without consulting the mortgagor, appears upon Judge Shepley's minutes. Whether the mortgagor gave authority for Buchaction, or whether was a by the mortgagor, does not appear, and may be of importance hereafter in ascertaining the validity of the policy; but the construction of the contract clearly is that the mortgagor is the assured. Thus it iEt said that the house is occupied by the assured, meaning the mortgagor. This being so, a court cannot hold that the effect or construction of the policy is varied by the, extrinsic that it was procured by the mortgagee. Not only is it inadmissible to change the contract by parol, but there is no reason to suppose that the parties intended to make any other contract than that which they entered into, or that the company wpuld have agreed to assure the mortgagee. Graves v. Boston Ins. Co. 2 Cranch, 4UI; Woodbury Sav. Bank v. Charter Oa,k Trts. Co. 29 Conn. 374; Li1.Ji,ngstone v. Western Ins. Co. 16 Grant, Ch. 9.
WILLIAMS JNS. CO.
The only cases cited which assist in the least degree the plaintiff's eontentioli in thiataspect are Cham/Jerl,ain v. N. 1:1. [ns.',eq. 55,N. g. 249, and Foster v. Equitable Mut. Ins. Co. 2 Gray, 216. In the former of these cases, the coud, expre.ssiIlg a somewhat strong dissent from a class of decisions concerning mutual companies in which it had been held that an action could not be inaintained.·in the name of the mortgagee unless he had .given a new note, decidfild that as against a stock company suohan action might be maintained when the mortgagee had paid the premium. The decision lipan the merits holds the mortgagee bound by the acts of the mortgagor, though relieyable to some extent by statute. In the second case,-the action by a mortgagee against 9.' mutual insurance company whq had assented to an assignment ofa policy as security to a and, had taken from him a written'a.greement to pay aU assessments which might be made upon the policy,-the court held that a new. contract had, in effect, been made with·the mortgagee, and that he would no langei be bound by the acts of the mortgagor, done withop,t his knowlege a.nd consent This decision reached a very just result, by .reasoning which is not fully g,eveloped; but probably something in the nature of an estoppel was thought to have arisen. That case has been often cited in Massachusetts, but' has as 9ften been held not togovern a qase like the present; For instance, where the mortgagee who had originally been insured agreed to &. change of the policy into the form now in question, upon the verbal assurance of the agent of the company that it would be equally safe in followed. . Fitcq,burg Save Bankv. all respects, the general rille Amazon Ins. Co. 125 Mass. 431. . '. The general rule is fully established, and governs courts of equity, unless there has been fraud or mistake in framing the contract. It is often harsh in its operation, and is now modified by many of the best companies. In the absence of any such modification in this policy, I must hold, as I am sure Judge Shepley would have held., that there must be a new trial.
00. fl. INTERNATIONAL BBIDGB
(District Oourt, N. D. New York. 1881.)
1. THE INTE,RNATIONAL BRIDGE CoMPANy-AcT OF 1870. The act of congress passed in June, 1870, providing, among other things, that .. all railway companies desiring to use the said bridge shall have and be entitled to equal rights and privileges in the passage. of the same, and in the use of the machinery and fixtures thereof, and of aU the approaches thereto, under and upon such ter!Ils and conditions as shall be prescribed by the district court of the United States," etc., does not confer upon such court jurisdiction over a controversy relating solely to the compensation which ia due the corpa. ration for the use of the bridge.
POWER TO REGULATE COMMERCE.
Where a corporation incorporated by the legislatures of Canada and New York for the purpose of building a bridge, constructs it, in part, over public navigable waters of the United States, it 'seems that congress, under the power conferred upon it. by the constitution to regulate commerce, has the right to prescribe what compensation it shall charge for its use.
CONGRESs-DELEGATION OF AUTHORITY-JUDICIAL
As the exercise of judicial functions alone is involved in determining the amount of such compensation, congress can confer the authority necessary for this purpose upon a federal court.
4. CHARTER RIGHTS-LEGISLATIVE INTERFERENCB.
As the right to charge such tolls as the judgment of Its officers might war· rant constituted the essential value of such company's franchise, it will not be inferred that congress intended to interfere therewith. U the language of the act is consistent with a less violent purpose.
McMillan t1 Gluck, attorneys for petitioner. with Geo. F. Oomstock. Adam Crooks, Q. 0 ·· Grover Oleveland. and Daniel B. McMillan, of counsel for petitioner. Sprague, Milburn IX Sprague, attorneys for respondents. with E. C. Sprague, John Bell, Q. C., and John G. Milburn, counsel for respondents. WALLACE, D. J. The petitioner, the Canada Southern Railway Company, has applied to this court to determine the terms and con· ditions upon which it may be permitted to use the"bridge of the respondent, the International Bridge Company, an4 in this behalf to adjudge what compensation the respondent may exact for such use. The International Bridge Company is a corporation organized pursuant to concurrent legislation on the part of the State of New York and of Canada, authorizing a New York corporation and a Canadian corporation to consolidate and enjoy the franchises conferred by the legislation of the respective sovereignties. Under these acts the corporation was authorized to build and maintain a bridge across the