Michaela Leonarda, Baroness of Pontalba, v. The Phœnix Assurance Company of London, 2 Rob. 131

Morphy, J. Certain stores and buildings, insured against fire, having been partially destroyed, were rebuilt, or rather repaired, by the defendants, under a clause in the policy worded as follows . “When any loss shall have been sustained.by fire upon property insured, the Company will either re-instate the same, or the assured, as soon as such loss or damage shall have been duly proved, shall immediately receive payment of his claim.” This suit is brought to recover $1200, for the rent of the stores during three months that the rebuilding or repairing of them lasted.

The question is,. whether, under the above recited clause in the policy, the defendants are bound to pay the rent of the property during the time that was occupied in re-instating it.

There is no dispute as to the value of the rent, nor as to the necessary duration of the repairs made to the premises-, In the absence of an express stipulation, such as appears to exist in the policies of several'Insurance Companies of this city, that during the rebuilding or repairing of a house, rent shall be paid as a part of the indemnity due to the as-f sured, it cannot be contended, on any legal principle of insurance, i that a policy on a house covers any part of the rent, which is a , thing distinct from the subject matter of the insurance, and constituting of itself an insurable interest.

The obligation of the defendants to the assured could be discharged, either by the payment of the amount of the loss or damage sustained, or by reinstating the property in its former condition. The latter alternative necessarily implied some reasonable time for its execution. Of this the insured was aware. No rent having been stipulated for during that time, none can be exacted. The testimony shows that the amount for which the repairs could have been made was tendered to the plaintiff’s agent, but that he refused to receive it, thus throwing on the defendants the obligation of repairing the house.

By doing this, he could not surely impose upon them the additional obligation of paying the rent during the repairs. This rent was no part of the thing insured. If the plaintiff wished to secure its amount during the rebuilding of.her stores, whether done by herself or by the defendants, she should have made an express stipulation to that effect, or have caused a separate insurance to be made on it.

But it is urged, in support of the present claim, that a policy of insurance being a contract of indemnity, the underwriters are bound to adjust the loss upon the principle of replacing the party assured, as nearly as may be, in the sitúa tion he was in before the fire. This is unquestionably true as a general principle, and in relation to the subject matter insured, but it has never been understood to extend to the profits or fruits the assured was drawing, or might have drawn, from the thing insured.

These are consequential losses, for which he cannot be indemnified, especially when such losses fall on things susceptible of being insured separately. There is much analogy between the rent of a bouse and the freight of a ship ; both are the civil fruits of the thing from which they are derived. It is believed that the attempt has never been made to recover freight under a policy of insurance on a vessel; and yet the loss of the freight, like that of the rent, is a direct consequence of the destruction of the vessel.

In both cases the loss falls on a thing which is' no part of the object insured, and which is not, therefore, covered by the policy. 1 Phillips on Insurance, 190. 2 Marshall on Insurance, 722. Judgment affirmed.