GEORGE C. RICHARDSON and others, Appellants, v. THE HOME INSURANCE COMPANY, Respondent.
I. Evidence.
I. WRITINGS, VARYING, &c., BY PAROL.
(a) General rule that they cannot be contradicted or varied, &c. by parol, &c., not applicable.
1. When it is designed to show that the writing does not represent the whole contract, but was executed in part performance only,
or
the purpose for which the writing was executed
*139or
that there was a conditional delivery or
that the writings, though purporting to be a contract, were not intended, as such.
2. When general indeterminate words are used, such as “owners,” “whom it may concern,” “trust property,” evidence dehors the writing is admissible to point and apply the words, so as to show to whom the words “owners ” and “ whom it may concern,” referred, and to what property the words “trust property ” referred.
3. Where a party to an action, to sustain his side, rests on mere inferences arising from the letter of a writing, it is competent for the other side to repel the inferences by parol testimony.
APPLICATION OF PRINCIPLE.
II. Insurance.
1. CONTRIBUTING POLICIES.
(a) The plaintiffs, being general commission merchants, insured the goods of one of their customers, the Lowell Manufacturing Company, by four several policies taken out in the name of that company, also by five several policies taken out in their own name, attaching first to property belonging to said Lowell Company, and then to their own property, or property held by them in trust or on commission, but to the two latter only to the amount for which they, as agents, might be held liable to their principals, and to the advances madé on the same, both or either, and to attach to goods sold, but not removed from the store; they also took out three policies (termed in this litigation, for convenience of designation, “ general policies ”), the covering clauses of which were as follows:
“ On merchandise, their own or held in trust or on commission, or sold but not delivered, contained in the brick and marble building Nos. 115 and 117 Worth Street, this city, comprising ary goods, foreign and domestic, in unbroken and unopened packages, including open sample packages, when the same shall not exceed ten per cent, of the stock, provided the said samples are not more than hazardous according to the classes of hazards.” *140One of these three was issued by the Traders’ Insurance Company of Chicago, and another by the American Central of St. Louis.
The question was whether the general policies were contributing ones to a loss on the Lowell Company goods or not.
Held, that
although the words of the general policies were comprehensive enough to include the goods of the Lowell Company, jyet that evidence, outside of the policies, was admissible to show that they did not, in fact, and were not intended to cover these goods.
1. Consequently.
1. Evidence of payments by the Lowell Company for the insurances on the nine specific policies and for no other; of the payment by plaintiff for the insurance in the three general policies without contribution from the Lowell, or claim for contribution ; of no notification ever having been given to the Lowell Company of any insurance other than that in the nine policies, and of the non-adoption, by that company, of any other, is admissible; and as upon such evidence, together with the facts that plaintiff held, in trust, goods other than those of the Lowell Company, the referee might have found that the general policies were non-contributing to the Lowell loss; the final exclusion of the evidence was error calling for a new trial.
HI. Appeal.
1; MODIFYING JUDGMENT BELOW BY RAISING IT.
(a) Necessary facts found.
1. When the necessary facts on which a final judgment depends are found upon the record, and there is no valid exception to the process by which they have been found the general term may modify, otherwise not.
Before Speir and Freedman, JJ.
Decided February 7, 1881.
Appeal by plaintiffs from judgment entered upon the report of a referee.
The action was brought upon a policy of insurance, *141dated November 10, 1877, wherein and whereby the defendant insured the plaintiffs under their firm name of George C. Richardson, to the amount of $35,000, on merchandise contained in the stone and brick building, Nos. 115 and 117 Worth street, in the city of New York. On January 24, 1878, a fire occurred in the said building, whereby a large amount of property in the possession of the plaintiffs, in said building, was destroyed.
The plaintiffs were general commission merchants, and had in their said building, at the time of the fire, the property of a number of consignors. Their names, the value of their property, and their losses sustained, were as follows:
Goods in store. Loss.
Lowell M’f’g. Co. (Carpets) . $113,287 23 $83,677 37
Everett Mills (dry goods) . . 15,399 92 1,971 71
Boot Mills “ . “ . . 13,190 79 1,713 77
Mass. Mills “ “ . . 13,184 93 1,751 11
Lawrence Mills (dry goods) . 9,729 28 1,245 75
T. & Suffolk Mills “ 5,095 16 652 34
York Mills “ 24,174 13 3,089 40
Lewiston & Granite Mfg. Co.
(dry goods) 34,188 42 9,091 26
$225,249 76 ! $103,192 72
These goods were covered by thirty-eight policies of insurance, and the aggregate of insurance was $342,500, as follows:
Upon the goods of the Lowell Manufacturing Company, $90,000, of which $25,000 was by four policies in the name of that company, in this form :
“ On carpets, their own or held by them in trust, or on commission, or sold, but not delivered. Loss, if any, payable to the treasurer.”
And $65,000 by five other policies, of which the pol*142icy in suit is one, all in the name of the plaintiffs, in this form :
‘ ‘ On merchandise contained in the stone and brick building situate Nos. 115 and 117 Worth street, N. W. corner of Elm street, New York City, attaching first to property belonging to the Lowell Manufacturing Company, and then attaching to their own property, or property held by them in trust or on commission, but to the two latter only to the amounts for which they, as agents, may be held liable to their principals, and to cover advances made on the same, both or either, and to attach to goods sold but not removed from store.”
These policies were procured by the plaintiffs, under the instructions of the Lowell Company, to keep their goods fully insured, were reported to that company as soon as made, as taken out to cover their goods ; the premiums were paid, in the first instance, by the plaintiffs, and immediately charged in account to the company, and paid by it. '
Upon the goods of the Everett Mills, $30,000, by three policies in the name of the plaintiffs, in the same form last set forth, and the same facts existed in respect to them in the dealings between the plaintiffs and the Everett Mills, as above stated, in respect to the Lowell Company’s insurance. -
Upon the goods of the Boot Mills, $12,500, by one policy in the name of the plaintiffs, in the same form last set forth, and the same facts existed in respect to it, in the dealings between the plaintiffs and the Boot Mills, as above stated, in respect to the Lowell Company and the Everett Mills insurances.
The goods of the Lewiston and Granite Companies were held by the plaintiffs upon different terms. Upon these the agreement with those companies was that the plaintiffs should receive a guarantee commission for the sales to be made, and should insure them at their *143own cost, being themselves responsible, as insurers to; the owners, in case of loss.
To cover these goods the plaintiff took out insurance by three policies in their own names, to the amount of $30,000, in this form :
“ On merchandise not hazardous, their own, or held by them in trust or on commission, or sold but not delivered, contained in the brick and marble building situate Nos. 115 and 117 Worth street, N. W. corner of Elm street, this city: comprising dry goods, foreign and domestic, in unbroken and unopened packages, when the same shall not exceed ten per cent, of the stock, provided the same samples are not more than hazardous according to the classes of hazard.
In respect to all the other goods in the store the plaintiffs had express instructions from the various consignors not to insure ; but the same were insured by the consignors for their own account, and in their own names, by twenty-two different policies, to the amount in the aggregate of $180,000.
The plaintiffs had no goods of their own in store, and there is no evidence that they had made advances upon any of the goods of the various consignors.
The consignors had, in respect of insurance, been divided into three classes by a long established and absolutely uniform course of business between the consignees and their respective consignors, viz.:
First. The consignors who procured and paid for their own insurance in their own names.
Second. The consignors whose goods were sold by the consignees on a del credere commission, which included the cost of insurance; the consignees being liable as insurers, and obtaining and paying for insurance in their own names.
Third. The consignors whom the consignees were instructed to keep covered, for whom specific insurance was obtained (sometimes in the name of the con*144signors, and sometimes in the name of the consignees); these consignors being uniformly notified in the monthly statements made by the consignees of the insurance obtained and paid for them, and uniformly in the current month reimbursing the consignees the premiums so paid.
The referee found, among other things:
(1.) That of the thirty-eight policies all were specific but three.
(2.) That the assured in the thirty-eight policies paid for all the insurance, except the insurance in the three general policies, all of which was paid for by the del •credere consignees.
(3.) That the insured in the thirty-five specific policies were amply covered by them, the property therein at risk being of the value of $194,060.84, and the specific insurance thereon, $313,500.
(4.) That the property of the two corporations cov-ered only by the three general policies was of the value of $31,188.42, and its only insurance the $30,000 in those policies.
Of the thirty-eight policies on consigned property held by the plaintiffs, subsisting at the time of the fire, twenty-two belonged to the first class, and were held by the referee to be non-contributory. Of the remaining sixteen policies, three belonged to the second class, and were held by the referee to be contributory ; and thirteen belonged to the third class, nine of which are conceded and were held to be contributory to the Lowell loss. Of the four policies of the third class thrown out of contribution, and about which there is no controversy on this appeal, 'three were on the Everett Mills and one on the Boot Mills,
'The loss of the Lowell Manufacturing Company was charged by the referee upon twelve policies as contributory, nine of which belong to the third class and are specific policies upon the Lowell, and three of *145which belong to the second class and are general policies issued to George C. Richardson & Co. on property “ their own, or held in trust.”
A condition in each policy provides that in case of other insurance on the property, the insurer shall be liable on the policy only in the proportion which the sum thereby insured bears to the whole insurance on the property.
The referee held, that the $30,000 of insurance in the three general policies, after reserving $10,306 on the losses of the Granite State, Lewiston, Everett and Boot Mills, must contribute to the Lowell loss in the proportion of the unexhausted balance of the insurance, viz., of $19,694; and that thereafter the Lowell loss was to be apportioned upon $109,694 of insurance, instead of upon the $90,000 of insurance contained in the nine third class policies specifically upon the Lowell Company, and that this defendant, on the basis of $109,694 of contributing insurance, is liable to the Lowell Company for $29,775.09 ; and that if the contribution had been upon the basis of $90,000 of insurance, the defendant’s liability would have been for $36,291.91, thus making a difference against the plaintiffs amounting to $6,516.82.
The referee found as a fact, that the insurance in all the specific policies was paid for by the parties specifically insured; and that the insurance in the three general policies was paid for by Geo. C. Richardson & Co., without- contribution from the parties having specific insurance, and with no reimbursement except from their del credere commissions paid by the Granite State Mills and the Lewiston Mills.
The “ proofs of loss” served for the Lowell Company’s loss did not recognize any insurance on its property except the nine specific policies for $90,000 ; Richardson & Co. made no claim on the three general policies except for the loss on the property of the *146Granite State and the.Lewiston Mills; but when that loss was paid, the controversy between the insurers respecting contribution having become known, R & Co. took a stipulation from the three companies (as they did from the insurers of the Everett and Boot Mills), that in case it should be held by the court of appeals that their policies are liable to contribute with other companies, R & Co.’s right to call for contribution should be saved.
VanOott& Winslow, attorneys, and Joshua M. Van Colt, of counsel, for appellants.
F. W. Hubbard, of counsel for the Traders’ and American Central Ins. Co., submitted points, in which he urged:
I. The rule of evidence in regard to the variation of writings is limited to the immediate parties to the instrument, and has no application to a writing between other parties foisted into a case collaterally. In the matter of an extraneous document inter adiós acta, the truth may be shown, although conflicting with the letter of the writing. There is no doctrine of estoppel in the way. This equitable rule, which seeks the real fact, can work no injustice. It was invented to prevent the prostitution of a foreign instrument by a stranger to it to illegitimate purposes, which the authors of it never intended. This salutary principle in the law of evidence is too firmly rooted in jurisprudence to be disturbed. It has become elementary (Arnoudd Ins. 1315-1316; 1 Phillips on Ins. § 382; Angell on F. Ins. § 80; Wood on Ins. 190). In works on evidence it is recognized (Greenl. Ev. 279 a; Taylor, § 834; 2 Whart. Ev. § 923). And in adjudged cases: 55 N. Y. 233; McMasters Ins. Co. of North America; 37 Id. 79; Lee v. Adsit, 76 Id. 436 ; Harvey v. Cherry, 45 Id. 454, 460 ; 65 Id. 10, 14 ; 24 Id. 302; 19 Id. 182; 12 Pick. 317; 19 Blatchf. 122, *147127; 38 Md. 382 ; Sansom, 48 ; 61 N. Y. 471; 59 Id. 521). The referee, it is submitted, was mistaken in his supposition that this wholesome rule of evidence was contravened by the decision in the Home Ins. Co. v. Baltimore Warehouse Co. (93 U. S. 527). The precise question here was not involved there. It was conceded in that case that the general policy to the bailee covered all the property in the warehouse covered by the specific policies issued to the respective bailors and assigned to the bailee. Ho evidence was offered to show that any construction should be given to the contract of insurance other than that which its letter provided. The defendant in error in that case held other policies, some issued to it directly, and others in the name of depositors of goods, loss made payable to it. These latter were to indemnify it against advances on property deposited with it as a warehouse-keeper. It was held, in the absence of proof aliunde,. that all the policies should be regarded as practically running to the same person, and upon the same interest, and that thereupon the defendant in error could recover for the entire loss, and was not limited to any special interest therein as bailee. The court also held, that all the policies, those taken out by the warehouse itself, and those taken out by the depositors of goods, were contributory, because covering the same property and interest—that substantially they were all for the benefit of all the several owners of the goods destroyed. It is thus seen that the case is not an authority here, as the precise question now under review was not then decided.
II. It may be conceded that a bailee may insure the property of a bailor in his hands. But to make the policy effective for the bailor it must have been obtained by the bailee within the scope of his agency, and intentionally for the benefit of his principal. The three policies in question lack that essential element. *148Ifc was shown that the plaintiffs did not procure them in their capacity as agents or trustees of the Lowell Company. Under such circumstances it was not in the power of that company to have adopted or appropriated them against the will of the plaintiffs. The Lowell company was otherwise fully insured, and the plaintiffs had no trust interest in the property of that consignor or liability to be protected (Wood on Fire Ins. 484). It was upon the proofs on the trial impossible that those three policies should have any validity, except pertaining to the Lewiston and Granite Mills property. Every interest in all the other consigned property was fully protected by insurance.
III. The policy in suit was obtained primarily for the benefit of the Lowell Company, based directly upon its property. This action must be regarded, therefore, as the action of that company, brought in the name of the plaintiffs as trustee of an express trust. In this view, it is submitted a double insurance could not be created by .the plaintiffs without the privity or consent of the Lowell Company, which they did not have. Their agency in that respect had been exhausted in the procurement of insurance as instructed. If they had assumed to extemporize a double insurance it could not have prejudiced their principals, because dehors their agency powers.
Edward Patterson, attorney, and of counsel for respondent, among other things urged:
I. There was double and contributory insurance respecting the general policies.
The law on this branch of the case has been distinctly settled by the supreme court of the United States in Home Ins. Co. v. Baltimore Warehouse Co. (93 U. S. 527). In that case the owners of goods had taken out specific policies on their goods in the warehouse of the defendant in error. The Home Company had *149issued to the Warehouse Company a policy in these words: “Insure Baltimore Warehouse Company against loss or damage by fire to the amount of $20,000 on merchandise, hazardous or extra hazardous, their own, or held by them in trust or on commission, or in which they have an interest or liability, contained in” a certain warehouse. It was claimed that this policy must contribute with the special policies taken out by the owners, and although this same defendant strenuously resisted it, the court sustained that claim. It would be carious and very oppressive if, in an entirely analogous case, the rule that worked against it there should not operate in its favor here. This decision of the United States Supreme Court was put upon the broad ground that the policy (that is, the Home or the general policy, covered merchandise, and not interests in merchandise, held by the Warehouse Company. The court says (p. 543): “¡Nowhere is any less interest in the goods alluded to than the entire ownership. The words of the policy are not satisfied if their import be restrained, as the plaintiff in error seeks to confine it. The parties to whom the policy was issued were warehouse keepers, receiving from various persons cotton and other merchandise on deposit. It was at their option to obtain insurance upon the entire interest in merchandise, whether held by them or by the depositors. It is, undoubtedly, the law that wharfingers, warehousemen and commission • merchants having goods in their possession may insure them in their own names, and, in case of loss, may recover the full amount of insurance for the satisfaction of their own claims first, and hold the residue for the owners (the court here cites authorities). Such insurance is not unusual, even when not ordered by. the owners of goods ; and when so made it inures to their benefit. And such insurance we must hold the Warehouse Company sought and obtained by the policy of *150the plaintiff in error. The words ‘ merchandise-held in trust ’ aptly describe the property of the depositors.” The case at bar is on all fours with the case cited, as to the Richardson & Co. general policies. The whole property is covered ; the general policies inure to the benefit of the Lowell Company, for their goods were in the Richardson stores “on trust”—they were “merchandise ” or “property ” or “drygoods ;” and the plaintiffs were required to insure them.
This is the test: Throw out of sight the group of $65,000, to which the Home policy in the case belongs. Would it be contended that the loss of the Lowell Company being $83,000, then that the general policies would not cover ? Suppose there was no other insurance than the Lowell policies direct and the general policies, and the same goods and the same loss as now appears, would it be claimed that the general policies were not broad enough to cover the Lowell carpets from the very phraseology of the general policies themselves? And if the general policies are broad enough to cover, they do cover by necessary consequence, for their terms control.
II. The referee was right .in rejecting the parol evidence offered by the plaintiffs to show that the intention in taking out the general policies was to limit the insurance to be effected by them to the Lewiston .and the Granite State merchandise. Parol evidence -cannot be used to vary the several contracts of insurance before the court. There is no latent ambiguity in the clauses of the several policies descriptive of the risks assumed ; all the elements and factors necessary to ascertain what the underwriters agreed upon or what the parties intended are contained in those clauses. The question is merely one of construction. It has been decided frequently that what subject policies of insurance are intended to cover must be de*151termined from “ the words of the contract which the parties have made” (Home Ins. Co. v. Baltimore Warehouse Co., 93 U. 3. 541 ; Loraine v. Tomlinson, Doug. 564; Astor v. Union Ins. Co., 7 Cow. 202; Murray v. Hatch, 6 Mass. 465 ; Levy v. Merrill, 4 Greenl. 480; Baltimore Fire Ins. Co. v. Lowrey, 20 Md. 36; Arnold on Ins. 1316, 1317, and notes; 3 Greenl. Ev. 377; Ruse v. Mutual Benefit Life Ins. Co., 23 N. Y. 519; Wilson v. Dean, 74 Id. 536). In all the cases relied upon below by the plaintiff where the extrinsic evidense was allowed, there was a latent ambiguity, and on that ground the evidence was received. In Forgay v. Atlantic Mut. Ins. Co. (2 Robt. 79), the policy of S. T. took out was “ on account of whom it might concern.” Parol evidence was clearly admissible there, but as the U. S. supreme court says, that rule cannot affect a case like the present. Lee v. Adsit (37 N. Y. 78), is not an authority in plaintiff’s favor. That was not an action between the assured and the underwriter, but between the consignee and the consignor; as between them the parol evidence of intention was admissible. The court expressly says (p. 94): “This is not an action against the insurers or upon the policies. The rule that parol extrinsic evidence shall not be received to contradict or vary a contract which is in writing, applies only in controversies between the parties promisor and promisee in such contracts. It is founded upon the just and rational presumption that the parties have made all the stipulations for the protection of their respective interests on which they have agreed, and have in language chosen by themselves placed such stipulations in a more certain form than mere oral discourse, for the purpose of excluding such loose and uncertain media of proof.” Here the suit is between the assured and the insurer (and is upon the policies), who appeals to the policies existing at the time on the property with express reference to which it con*152tracts. It will be found upon examination of each of the other cases cited on the trial by plaintiff’s counsel, that the same distinction runs through them all, and that the relation of the parties and terms of the policies, all present cases of latent ambiguities where the contest is between the assured and the underwriters. In Bidwell v. Northwestern Ins. Co. (24 N. Y. 302), it is said, that when it is not contradictory of the terms of the policy, it may be shown “ whose property it was intended to cover,” &c. The text-books merely state the general rule that a policy issued to a particular person for account of “whom it may concern,” or some similar or equivalent clause, will be made applicable to the interest of whomsoever was intended to be covered, if the insurance is adopted by such person.
By the Court.—Freedman, J.
The precise question involved in the appeal is whether the three general policies held by Richardson & Co. on property “their own or held in trust, etc.,” constitute other insurance within the meaning of the nine specific policies on the Lowell property, and as such are- chargeable with contribution. Substantially the question is presented by exceptions to the rulings of the learned referee who tried the cause, holding parol evidence incompetent upon this poitit and determining solely upon the language of the policies that the three general policies should contribute with the nine specific policies to pay the loss of the Lowell Company.
The contention on behalf of the Lowell Company . throughout, was (1) that R. & Co. obtained the nine specific policies on Lowell, and no other policies on account of the Lowell Company; (2) that R. & Co. had no authority to obtain insurance for the Lowell Company by general policies, mixing the interests of that company with the interests of other owners of other insured property, and that R. & Co. did not *153intend any insurance in the -three general policies to-be for the Lowell Company -; (3) that even if R. & Co. had so intended, the Lowell Company did not adopt it, but rejected it; (4) that the evidence received provisionally, of the course of the business, of the payments by the Lowell Company for the insurance in the nine specific policies, and for no other ; of the payment by R. & Co. for the insurance in the three general policies, without contribution from the Lowell, or claim for contribution and that no insurance except in the nine policies,, for the Lowell, had ever been notified to the Lowell Company, and that the company had never adopted any other ; was competent evidence, in respect of the extent of R. & Co.’s agency to obtain insurance, and of the extent and scope of the three general policies, as not covering the Lowell property and loss.
The general rule undoubtedly is, that a contract reduced to writing must be taken to be the repository and evidence of the final intention and understanding of the parties, and that when parties have deliberately put their engagements into writing, in such terms as import a legal obligation, without any uncertainty as to the object or extent of such engagements, it is conclusively presumed that the whole engagement of the parties and the extent and manner of their undertaking were reduced to writing ; and that in such a case all oral testimony of a previous colloquium between the parties, or of conversation or declarations at the time when it was. completed, or afterwards, must be rejected (Pohalski v. Mutual Life Ins. Co., 36 N. Y. Super. Ct. 234, and authorities therein cited, which was affirmed by the court of appeals in 56 N. Y. 640).
But the rule' is subject to some well established qualifications, or, more properly speaking, it does not apply w-here the facts do not bring the case within it.
*154Parol evidence is admissible lo show that the writing as executed does not represent the whole contract between the parties, but but was executed in part performance only (Hutchins v. Hebbard, 34 N. Y. 24 ; Barker v. Bradley, 42 Id. 316 ; Hope v. Smith, 35 N. Y. Super. Ct. 458 ; affirmed in 58 N. Y. 380). So a party may show the purpose for which the writing was executed (Cipperly v. Cipperly, 4 N. Y. Supreme Ct. [T. & C.] 342 ; Hutchins v. Hebbard, 34 N. Y. 24); or that there was a conditional delivery by which a locus pcenitentice was preserved (Dietz v. Farish 44 N. Y. Super. Ct. 190 ; affirmed in 79 N. Y. 520); or that the writings, though purporting on their face to be a contract, were not, in fact, intended by the parties as such (Grierson v. Mason, 60 N. Y. 394).
In case of uncertainty it may be laid down as a broad and distinct rule of law that extrinsic evidence of every material fact which will enable the court to identify the persons and things to which the instrument refers, must of necessity be received. If the language of the instrument be alike applicable to each of several persons, parcels of land, species of goods, or circumstances : or if the terms be vague and general, or have diverse meanings, parol evidence, says Taylor on Evidence, will always be admissible of any extrinsic circumstance tending to show what person or persons, or what things, were intended.
As has been well said by the learned counsel for the appellants, a policy, however general and comprehensive its language, covers only the party intended, and who has authorized or adopts it. General indeterminate words, such as “owners,” “whom it may concern,” “ trust” property, are equally comprehensive, and are broad enough to cover everything answering the description, and intended to be covered ; but the property and interests they are intended to cover must be averred and proved. Ho case holds that *155“ owners ” necessarily covers all owners; or “whom it may concern” necessarily covers all concerned in a loss; or property “in trust” necessarily covers all trust property. The parties insured by such general terms are only those for whom the insurance was intended, and it is so laid down in all the elementary authorities and all the adjudged cases. Evidence «to point and apply indeterminate words is held not to violate the rule which excludes extrinsic proof to vary writings. Lee v. Adsit (37 N. Y. 78) is directly in point and decisive.
In the case at bar the rule contended for by the respondent must either be a universal rule, irrespective of actual intention, or no rule at all; there is no middle ground. The trust clause must cover all trust property, without regard to intention, or only cover such as was intended; there is no other alternative. The learned referee seems to have held both ways ; he held it- not to be a universal rule, and threw out the twenty-two policies on proof of intention ; and he held it to be a universal rule, excluding proof of intention, and brought the three general policies into contribution.
The practical effect of his decision is to make the nine policies attaching first to the goods of the Lowell, Everett and Boot Mills, notwithstanding their secondary clause, specific policies on the goods of those particular mills, and expunging the secondary clause entirely, and to make the three general policies, which he deemed must, by force of their language, cover all the goods in the store alike, attach first to the goods of the Lewiston and Granite Mills, and then specifically to the goods of the Lowell, Everett and Boot Mills, exactly as if they were in form policies attaching first to the goods of the Lewiston and Granite, and then to those other goods by name. The net result to the companies liable on those three general policies is that they are to be made to pay nearly one hundred per *156cent, of the face of their policies, though the loss on the Lewiston, and Granite, which they were taken out to cover, was less than thirty-three per cent., and are made to pay the difference to the relief of the companies liable primarily on the loss of the Lowell, Everett and Boot goods. It also has the effect to discharge the companies whose policies, to the amount of $30,000, attached first to the goods of the Everett Company, of which there were but $15,399.92, from all liability under the secondary clause, which was left floating to the amount of at least $14,600.08.
The referee, in resting his decision upon the case of Baltimore Warehouse Co. v. Home Ins. Co. (3 Otto, 527), misconceived the bearing of the point decided by the supreme court of the United States. In that case the general policy to the bailee was conceded to cover all the property in the warehouse, and it was consequently held that extrinsic evidence could not be resorted to in order to show that insurance which, by the terms of the policy, was upon “Merchandise in the warehouse, their own, or held by them in trust, or in which they have an interest,” was intended to be simply insurance upon the interest of the Warehouse Company. In the case at bar the question is whether the general policies attached at all to the property of the Lowell Company. To the extent of determining this question extrinsic evidence may be resorted to. Thus in McMasters v. North America Ins. Co. (55 N. Y. 222), it was held by the court of appeals that the insured could himself testify that a collateral policy taken out by himself in another company did not cover the same property covered by the policy sued upon, though the description was comprehensive enough to cover it. Robbins v. Firemen’s Fund Ins. Co. (16 Blatchf. 122) does not help the respondent. In that case the general policy was held to be contributory with the specific policies, because it contained the trust *157clause, and the consignor’s property covered by the specific policies was the only trust property held by the consignee, and the only property therefore that could have been in contemplation in insuring trust property. It was this extrinsic fact which controlled, for Judge Shipman, in the course of his opinion, says that when the insured has property in trust or on commission belonging to two persons, one of whom is the actual beneficiary in the policy and the other is not, it is competent to show by extrinsic evidence whose property was actually intended to be covered by the insurance.
The error involved in the rejection of the extrinsic evidence under consideration becomes still more clear when it is borne in mind that the so-called general policies came into the case collaterally- The issue of contribution was presented by the defense, and upon this branch of the case the affirmative rested with the defendant. The burden was cast upon the defendant to show affirmatively all the details essential to it, the identity of the risk and interest, and also the availability of the alleged contributory insurance as an indemnity to the Lowell Company, for whose benefit the policy in suit was obtained. All the defense proved was the existence of the three policies claimed to be contributory, and then it rested upon the mere inference of identity of risk, interest and availability arising from the letter of the policies. If the defendant could rest on such inference alone,—a point not necessary to be determined here,—it certainly was competent for the plaintiffs to repel the inference by parol testimony, and to show the precise nature, character and purpose of the policies brought into the case by the defense. The objection of the parol testimony, therefore, clearly constitutes ground for reversal. The precise proving force of the rejected evidence it is unnecessary to detail or determine here. It is sufficient *158that upon it the referee might have found that in respect to the three general policies the contention on behalf of the Lowell Company was correct, and that the said policies never were intended to cover the goods of the said company.
It has been urged by the appellants that for the error complained of a new trial should not be ordered, but that the court, upon the facts before it, should modify the judgment by raising it to $36,2915 1, with interest. It is true that where the necessary facts on which a final judgment depends are found upon the record, and there is no valid exception to the process by which they have been found, the appellate court is in a situation to pronounce the appropriate final j udgment, and that in such a case it would be an act of supererogation to send the case back for a refinding of the facts, which have already been duly found. But the difficulty in the case at bar is that the facts have been neither duly found nor finally established, and that upon the point in dispute further evidence may perhaps be given upon a new trial on both sides. In the absence, therefore, of a stipulation or consent to the effect that the rejected evidence should be considered in connection with the other evidence, and that upon the whole case as then appearing all questions should be finally determined by us, the only disposition that can be made, is to order a new trial.
The judgment appealed from should be reversed, the order of reference vacated, and a new trial ordered, with costs to appellants to abide the event.
Speir, J., concurred.