Among the articles of personal property insured was a parlor organ, given to the plaintiff by her husband, which the husband purchased of another person by giving a note therefor, the note containing an agreement that the title in the organ should remain in the seller until the note became paid. At the date of the'injury by fire, the organ had been in part but not fully paid for. The plaintiff was in possession of the property. We think the plaintiff had an insurable interest in it. We are not informed by the case that any provision of the policy prevents a recovery for this article. At common law a common carrier — a warehouseman — and other bailees have an insurable interest in goods in their possession. Eastern Railroad Co. v. Relief Fire Ins. Co. 98 Mass. 425, and cases there cited; Amsinck v. American Ins. Co. 129 Mass. 185.
The defendants’ counsel complains that the judge at the trial remarked, that, if there were no representations, there could be no false ones, in procuring the policy. The counsel argues that this observation would lead the jury to suppose that fraud could not be accomplished otherwise than by fraudulent misrepresentations expressly made. The judge at the moment was commenting upon and had in mind express representations. If more enlarged instructions were desired by the defendants, they should have been requested, and the distinction which counsel had in mind should have been presented to the mind of the judge.
Nio other points in the exceptions are dwelt upon by counsel. The minor rulings were correct.
We feel impressed with a belief that the loss of goods was less than the amount found by the jury, and that a new trial should be granted upon that account.
Exceptions overruled.
Appleton, C. J., Barrows, Damfortii, Virgin and SymoNds, JJ., concurred.