The company, in their answer, place their resistance to the plaintiff's claim on the following grounds: First. That his assignor was bound by *Page 619 the terms of the policy to "give notice" of any further insurance "with all reasonable diligence;" Second. That he effected a further insurance for $1,000 twenty days before the fire without giving notice of it; Third. That "the insurance upon the property thereby became in excess of the real value." There is no allegation, it will be observed, that the plaintiff's assignor had suffered an unreasonable time to elapse. No issue is raised on that point; and at the trial the only ground, except one which I shall presently notice, on which the motion to dismiss the complaint was placed, was that no notice had been given of the second insurance.
This, as it appears to me, was of itself an immaterial issue. The real point was, or rather should have been, if the pleadings had been properly framed, whether the fire took place before the party had had a reasonable time to notify the underwriters of the second insurance. Twenty days might be reasonable, or it might be unreasonable, according to circumstances. As the case was one of a forfeiture of legal rights, it was incumbent on the party insisting to aver it and to sustain his averment by proof. The company did neither. They did not even ask that the question should be submitted to the jury. They abandoned also the alleged excess of insurance, and allowed a verdict to be taken for the plaintiff, subject to the opinion of the court at general term "on the question of law raised on the motion for dismissal," and with liberty, if deemed proper, to direct a dismissal of the complaint. A dismissal accordingly having been directed, the plaintiff appeals to this court and presents his case in a so-called bill of exceptions, "settled by consent of parties." I find no exceptions in it. At the trial the plaintiff could have taken none, as the judge in effect ruled in his favor. But when that ruling was reversed by the general term, it having been given only conditionally, the proper course would have been to have stated it in the opposite form with an exception by the plaintiff and that exception overruled at general term. I have treated the *Page 620 case, however, as if it had been regularly presented, and in that view the judgment should be reversed. The general term placed their decision on the ground of unreasonable delay. No such issue, we have seen, was made.
But waiving that difficulty, is twenty days, under all conceivable circumstances, and with every conceivable matter of excuse, necessarily, per se, unreasonable? The court below have so treated it; and accordingly have disposed of the point, not as a subject for the consideration of the jury, but as a dry question of law. In this I think they erred.
As to the clause in the policy prohibiting assignments without the company's consent, it has no reference to assignments made after the loss has occurred. The policy then becomes a fixed chose in action, transferable like any other similar property. It is of consequence to the underwriters, while the risk continues, to know whom they are insuring, but of no consequence to them, after a fire, whether they pay the damages to A or to B.
The jury having, in effect, found that there was no excess of insurance and of course no temptation to willful firing, and that having been in reality the only issue made, the dismissal of the complaint should be reversed and judgment entered for the plaintiff for the damages assessed, with costs.
Judgment affirmed.