Opinion
02-28-1889
WILLIAMS v. WARBASSE et al.
Charles J. Roe, for complainant. Lewis C. Cochrane, for defendants.
Charles J. Roe, for complainant. Lewis C. Cochrane, for defendants.
The complainant was indebted to the defendants on bond and mortgage. The buildings on the premises mortgaged were covered by insurance. The policy was assigned to and held by defendants as collateral. The complainant desired additional insurance, which was forbidden by the policy named, without the consent of the company issuing the first policy. However, he procured, or was about to procure, other insurance, and was informed that if he took such insurance without the consent of those who issued the first policy, such first policy would be forfeited. He then called upon one of the defendants, and informed him of the facts, and says that that defendant promised to take the policy, and procure the assent of the company to the additional insurance. This the defendant failed to do. The second policy was taken. The property insured burned. An action at law was brought by the mortgagees to recover the amount of the first policy. The company defended on the ground of forfeiture because of the second insurance without consent. The court sustained this defense. Warbasse v. Insurance Co., 42 N. J. Law 203. Now, the complainant says that the defendants are liable, in equity, to the extent of that loss. This can only be on the ground of contract, express or implied, arising from the alleged interview between the complainant and one of the defendants. I can find nothing else in the case that will impose any obligation on the defendants. The complainant, having assigned the policy, had no right to alter or to diminish the rights or interests of the defendants therein without their consent.
While it is true that other questions were presented on the argument, in my view of the case the only one that I should look at is54whether the proof sustains the allegations of the bill or not. In this regard, I think, the complainant fails. He does not make his case. The bill may rest upon equitable grounds, yet the proof is insufficient. The complainant is emphatic in his testimony as to what passed between him and one of the defendants; but the defendant is also quite emphatic to the contrary. And when I look at the circumstances and details, I cannot find enough to overcome the denial of the defendant. I will advise that the bill be dismissed, with costs.