It is an elementary principle, that a policy of insurance is a personal contract, whereby the insurer engages to indemnify the assured for such loss as he may sustain by reason of the perils insured against, and that such contract is not assignable, before loss, without the consent of the obligor. (1 Arn. on Ins., §§ 1, 8, 9, 13; Skinner a. Somes, 14 Mass. R., 107; Jessel a. Williamsburgh Ins. Co., 3 Hill, 88;. Wood a. Rutland & Add. M. F. Ins. Co., 31 Vt. R., 552.) Besides, there is no pretence in this ease that any assignment, or transfer was ever attempted to be made by Silvernail of his *348interest in the policy, to his partners, or either of them; so that it is quite clear, that the plaintiffs are not entitled to recover, by virtue of any assignment of the policy, as representatives of the interest therein of the copartnership firm insured, and of which they constituted but two of the three members. If they can succeed at all, it must be upon , the grotiud that the -contract of indemnity enured to their individual benefit as members of the firm, and that it covered all the property of which they, as copartners in another firm, were the owners, when the loss occurred.
But in the case before us, the insurance, it appears to me, was intended to be made with all the copartners jointly, and covered their joint interest as such in the property of the firm; and nothing was designed to be included in the contract except such of the property, described therein, as should continue to belong to them all, as copartners, at the time a loss should occur. The insurers took just this risk, and no other, and the assured accepted the policy with that understanding; and, each and all of them must be held to have assumed, with such acceptance, the legal obligation, always incumbent upon parties procuring an insurance upon their property, that each of them would exercise reasonable and proper watchful care and prudence, for the protection of the property insured, and .intended to remain in their hands. In the event which has occurred in this case, therefore, I think the defendants may well say, in .answer to the plaintiff’s claim, “ Confiding in the habits, good •sense, and prudence of Silvernail, and believing that the safety ■of the goods would be cared for by him, we executed the policy, when, without that, we would not have taken the risk; and we had, therefore, a legal right to expect a continuance of such •care and prudence on his part: our contract was made with him and his two partners, jointly, and not with either two of them without the other; and we agreed to indemnify them for .such of the goods, described in the policy, only, as should belong to the firm of Hoffman, Place & Co., at the time a loss should occur.”
The authorities upon this point are not only numerous, but, "in this State, somewhat conflicting. The first in time, of those I shall consider, is Howard & Ryckman a. The Albany Ins. Co. (3 Den., 301),. which was an action, brought in the name *349of both of the parties insured, to recover for a loss alleged in the declaration to have been sustained upon a fire-policy issued to them by the defendants. The defendants plead, that, after the insurance, and before the loss, the plaintiff Ryckman sold and transferred all his interest in the property covered by the policy to Howard, to which the plaintiffs demurred specially. The question thus brought directly before the court was precisely like this, except that, in the former case, the policy contained no restriction whatever, in terms, upon the sale of the subject insured (a matter, by the way, which I will hereafter consider). A majority of the court, Justices Beardsley and Jewett, sustained the plea demurred to, upon the ground that the plaintiff, for whose benefit the action was brought, could not recover for any portion of the loss, inasmuch as the persons insured had no joint interest in the property at. the time such loss occurred; and judgment was ordered for the defendants. Justice Bronson, however, dissented, holding that the contract of insurance was not terminated when the plaintiffs ceased, by a sale from one to the other, to have a joint interest. “The case,” he says, “ is not free from difficulty; but I think there may be a recovery on account of the interest which Howard had in the property at the time the contract was made, because that interest continued until the loss happened. But there can be no recovery on- account of the interest which Ryckman had in the property at the time the contract was made, because he had parted with that interest before the loss.-’
Murdock & Garrett a. The Chenango Mutual Ins. Co. (2 Comst., 210) was an action upon a policy issued to the plaintiffs as owners of a mill. After the insurance, but before the loss, Garrett conveyed his interest in the premises to Murdock. Upon the trial, the defendants moved for a nonsuit, upon the ground, among others, that the joinder of Garrett in the action was fatal to a recovery; which- motion was denied, and the plaintiff's had judgment. Upon appeal to the court of last resort, the judgment was reversed, and a new trial ordered. Judge Cady, in delivering the leading opinion in that case, remarked: “The question is, whether an action can be sustained in the names of both, when one has no legal interest in the suit. The joint interest in the property insured was destroyed when one conveyed all his interest to the other. That act, in which *350both concurred, rendered it impossible that a loss could after-wards happen within the meaning of the policy; the joint property of the insured could not thereafter be destroyed by fire, because they had no such property.” . . . “If one of "two owners of a mill, who are jointly insured, sells his part to a stranger, it may appear like a hardship that such sale should -destroy the policy; but it is no more than happens in all cases where there are joint promisees, &c., and one of them discharges the promise.” . . . “In this case, both the promisees concurred in the act which destroyed the joint remedy on the contract.” This decision was subsequently discussed, and its principle reaffirmed by the Court of Appeals in Tillou a. The Kingston Mutual Ins. Co. (5 N. Y. (1 Seld.), 405), where it was held that the. former case, and Howard a. Albany Ins. Co. (supra), were conclusive upon the subject; thus reversing the decision of the general term in the second district, where Judge Bakculo had expressed a contrary opinion.
These cases in our highest appellate court authoritatively overrule the evidently hasty decision of the Supreme Court, first district, in Wilson a. Gen. Mutual Fire Ins. Co. (16 Barb., 512); and they have been followed by the Supreme Court of Vermont in Wood a. The Rutland & Addison Mutual Fire Ins. Co. (31 Vt., 552); a case which, so far as the naked question now under consideration is concerned, seems to be precisely like this.- There, a policy upon merchandise in trade was issued to Wood & Co., a firm composed of Wood & Johnson. After-wards, Johnson having died, Wood purchased the interest belonging to his estate, and continued the business of buying and selling merchandise on his own account, up to the time of the loss. The court, in an action brought by Wood upon the jpolicy, held that if the plaintiff had continued in the care and possession of the goods as surviving partner only, an action might have been sustained by him as such survivor; but that, as his claim rested upon his purchase of the interest of his deceased partner, and the continuance of the business for his own benefit, he could not recover. In speaking of the effect of a sale by one of the assured partners to the others, and in approval of the decisions in Murdock a. The Chenango Ins. Co., the court says; “This has sometimes been put upon the ground .that, at the. time of the loss, the old firm had no insurable in*351terest in the property. But,-we think, where there is a volun-" tary change of the firm, the insurance company may, also, well say that the new firm is not the party with whom they contracted.” . . . “ They might be willing to insure Wood while connected in business with Johnson, and wholly unwilling to insure or deal with him alone.”
Upon these authorities, and for the reasons I have suggested, I have no hesitation in holding that, independent of the clause in the policy prohibiting the sale of the insured property, and solely upon the principle that the risk only extends to such of the property as continues to belong to all of the assured at the time of the loss, and that such assured, and they alone, can sustain- an action upon the policy, the plaintiffs in this case cannot recover, and that the refusal to charge as requested in this regard was erroneous.
If such must’be the result in cases where no provision is contained in the policy, in terms restricting the power of sale by the assured, a fortiori, it seems to me we must arrive at the same conclusion where such prohibition is inserted and directly expressed in the contract itself, with the assent of the parties insured, as in this instance; and so we find it has been decided in sundry cases in the highest courts of our sister States.
In Dix a. Mercantile Ins. Co. (22 Ills., 272), an insurance was effected by a firm composed of three partners, upon its stock of merchandise. The policy contained a condition that the instrument should be void in case of a transfer or change of title of the property insured, or of an assignment of the policy. One of the partners sold his interest in the goods to the other two, previous to the loss. The Supreme Court of Illinois held that such sale avoided the policy and terminated the liability of the insurers. Judge Breese, in delivering the opinion of the court, uses this language: “ A contract, as well of insurance as in regard to any other matter, must be interpreted according to the intention of the parties making it; and that is to be gathered from the language employed and the objects contemplated by it. The intention of the company was manifestly that no strangers should come into the care and management of this property without their consent. Knowing the parties with whom they contracted, and relying upon the fidelity and circumspection of each and every one of them, they *352were willing to take the risk at the premium stipulated.” . . “ They were willing, for the' premium, to intrust the property to the care and guardianship of Sinclair, Dix, and Harris, but not to the care and watchfulness of Dix and Harris alone. Is it not clear that the assurers may be as greatly prejudiced by removing one to whom, with others, they had intrusted the guardianship of valuable property, as by the introduction of a stranger? The one removing from the concern may have been the very one on whose vigilance, fidelity, and care the greatest share of confidence was reposed; and by so removing, the hazard is increased to the insurer, without any corresponding increase of premium.”
Finlay & Stanley a. The Lycoming County Mut. Ins. Co; (30 Penn., 311) was an action upon a policy issued to a firm of two partners, containing a similar provision, and where one of the partners had sold his interest in the insured property to the other, before the loss. The Supreme Court of Pennsylvania held that the plaintiffs could not recover. Justice Thompson, in pronouncing the decision, after stating that it was a fundamental condition of the contract that alienation of the property should render, the policy void, added: “ It cannot be doubted that a sale by one partner to another is within the prohibition.”' . . “ By the transaction, the one parted with all his interest, and the other acquired double what he previously possessed.”
A like conclusion was arrived at by the Supreme Court of Missouri in a case of the same character; (Dreher & Bumb a. Ætna Ins. Co., 18 Missouri, 128.)
These decisions of the ultimate appellate courts of Pennsylvania, Illinois, and Missouri, it is unnecessary to say, are entitled to the highest respect as authorities; and I have been unable to find in the books any opinion of a contrary tenor upon this particular point. Without examining the further exceptions contained in the case, I am, therefore, in favor of reversing the judgment, and directing a new trial.
Judgment affirmed.