Can a contract be divisible as divisible between two insured buildings?

Ontario, Canada


The following excerpt is from Gore District Mutual Fire Ins. Co. v. Samo, 1877 CanLII 5 (ON CA):

In Bleakley v. Niagara District Ins. Co., 16 Gr. 198, it appeared upon the hearing before the present Chancellor that a barn, one of the insured buildings, was not affected by the encumbrances on which the defence rested. His Lordship was asked to amend the bill by setting up that fact so as to enable the plaintiff to recover pro tanto. He refused, because it did not appear to him that the plaintiff would be entitled to recover. This decision is not placed on the reading of the statute, but upon the view taken of the contract by the parties. The learned Chancellor said: Insuring in the way that the plaintiff did insure, several buildings in one policy, there was a fact which he was called upon to disclose, and I must see clearly that as to the barn, at any rate, its non-disclosure was immaterial—that it could not be an element in the consideration of the assurers whether they would assure or not. I cannot see this; on the contrary, I can understand assurers refusing to take a risk on a building because of there being a mortgage on another belonging to the same person within a distance not free from risk.” There is nothing in the language used in the judgment to indicate that if the barn had been ten miles away, the wording of the statute would have prevented the contract being treated as divisible, as it was in Date’s Case.

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