The contract in question was one 'of indemnity only. (13 Am. & Eng. Ency. of Law [2d ed.], 101.) Profits may be recovered only when insured' as such. (Id. 105; Niblo v. North Am. Fire Co., 3 N. Y. Super. Ct. 551; Buffalo Elevating Co. v. Prussian Nat. Ins. Co., 64 App. Div. 182, 187; affd., sub. nom. Michael v. Prussian Nat. Ins. Co., 171 N. Y. 25.) Upon the facts the plaintiff would be indemnified by the payment to him of $1,841.95 and any greater sum necessarily includes profits. He was a manufacturer and his actual loss was obviously what he had expended upon the goods destroyed and not what he would have realized had he, sold them, since his profits would be included in the selling price. (Standard Sewing Machine Co. v. Royal Ins. Co., 201 Penn. St. 645 ; Scottish Union Ins. Co. v. Keene, 85 Md. 263 ; Mumford v. Hallett, 1 Johns. 433; Harris v. Eagle Fire Co., 5 id. 368.)
It is doubtless true that “actual cash value” is frequently to be' construed as equivalent to market value, but that term is used in the policy to limit the liability of. the insurer and the provision that the loss “ shall in no event exceed what it would then cost the insured to repair or replace the same with material of like kind and quality ” shows it was never intended by the use of such words to insure the manufacturer’s profits. The value of an article is ordinarily fixed by its market value, but in the case before us the amount which would indemnify the plaintiff is conceded and to allow him anything more is simply to allow him the profits which he would have realized had the fire not occurred.
I am, therefore, of the opinion that upon the agreed facts the plaintiff is entitled to judgment for the sum of $1,841.95, with interest from the 28th day of March, 1906.
Judgment ordered for plaintiff with costs. Settle order on notice.