728   INSURABLE INTEREST

Section 7.-A Contractor in the Subject-Matter of the Contract.
PLANTERS & MERCHANTS INS. CO. v. THURSTON.
Supreme Court of Alabama, 1891. 93 Ala. 235, 9 So. 268.

Appeal from city court of Birmingham; H. A. SHARPE, Judge.

This action was brought by the appellee, Charles H. Thurston, against the appellant company, and was founded upon a policy of insurance issued by the defendant to the plaintiff, insuring certain property against loss or damage by fire. There were several rulings upon the pleadings, but there are no assignments of error based upon such rulings. The plaintiff was engaged in the business of moving houses in the city of Birmingham, and while so engaged took from the defendant what was called a "builder's risk" upon the house involved in this suit. About two weeks after the issuance of this policy, by the defendant the said house was totally destroyed by fire, as were also the tools used by the plaintiff in moving the same, which were in the house. The suit was brought to recover the insurance on the house so destroyed, as well as to recover for the loss of the tools. The testimony of the plaintiff tended to show that in making his application to the defendant for insurance, which was done orally, he stated to the agent of the defendant, one Ellis, how he was interested in the house to be insured; that upon these oral representations the agent delivered to him a certificate of insurance reciting that he was insured in an "open policy," giving the number thereof: and the testimony further tended to show that he had been so insured by the defendant at other times prior to this. The principal defense relied on by the defendant was that the plaintiff did not have an insurable interest in the house that was destroyed; but it was not controverted that the plaintiff, in his application to the agent of the defendant, told the agent that he was engaged in moving said house. The case was tried without the intervention of a jury, as is allowed by statute. Upon the evidence as adduced the court rendered judgment for the plaintiff, and on this appeal the said judgment is assigned as error.

STONE, C. J. We think it is clear under the facts of this case that Thurston had an insurable interest in the house he was en• gaged in moving. The money and labor he had expended on the job, and the profit he would realize on its completion, make up the sum of the loss he suffered in the destruction of the house while in the process of removal. The burning of the house before reach• ing its stipulated destination placed it beyond his power to comply with his contract, and thus disabled him to earn his agreed compensation. This, under the modern rule, is an insurable interest. * * * So we do not think the city court erred in receiving oral testimony that when the application for insurance was made the