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NORTH BRITISH AND MERCANTILE INSURANCE COMPANY V. LONDON, LIVERPOOL AND GLOBE INSURANCE COMPANY FACTS By floating policies of insurance effected by Barnett & Co., wharfingers, they insured against loss or damage by fire, in the sums named, grain and seed, the assured's own or on commission, for which they were responsible, subject to conditions of average, and to this condition, that "if at the time of any loss or damage by fire happening to any property hereby insured, there be any other subsisting insurance or insurances, whether effected by the insured or by any other person, covering the same property, the company shall not be liable to pay or contribute more than its rateable proportion of such loss or damage." While these policies were subsisting a fire destroyed a quantity of grain stored with Barnett
& Co., part of which belonged to Rodonachi & Co., who had also effected policies, called merchants' policies, on the grain thus destroyed, including also grain stored elsewhere, which policies contained the like conditions as the wharfingers' policies. Barnett
& Co. were paid in full by the several insurance companies. The bill, which was filed by the North British and Mercantile Insurance Company as grantors of one of the merchants' policies, alleged that they were under no liability in respect of such policy on the ground that Barnett & Co. must be taken to have indemnified Rodocanachi & Co. in full for the loss of their grain; and that, even if they were bound to pay to Rodocanachi & Co. in the first instance the amount of their loss, they would become entitled to the benefit of all rights of action against Barnett & Co. in respect of such loss, and thus to recover from Barnett & Co. all that they might pay to Rodocanachi & Co. ISSUE Whether, a fire having occurred, and a great loss having been sustained, the companies who are liable on the merchants' policies are liable to contribute anything to the amount of that loss, which the wharfingers' policies alone would be more than sufficient to cover. HOLDING JAMES LJ Under these circumstances, it seems to me utterly impossible to say that there could have been any contribution. Contribution exists where the thing is done by the same person against the same loss, and to prevent a man first of all from recovering more than the whole loss, or if he recovers the whole loss from one which he could have recovered from the other, then to make the parties contribute rateably. But that only applies where there is the
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