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FIRE INSURANCE

Policy-By-Law-Alteration of Building-Increase of RiskNotice.- A policy of insurance provided that if the insured building should be “altered, added to, or enlarged,” notice must be given and indorsed on the policy. The contract (a by-law) elsewhere provided that if a building should be “ altered, enlarged, or appropriated to any other purpose than those mentioned, or the risk be otherwise increased,” without the consent of the insurer, the policy should be void. Held, these provisions required notice and consent with respect to a material enlargement of the building, even though the risk was not thereby increased.

Same-Permission for Repairs.--A written provision in such a policy authorizing “necessary alterations and repairs ” did not authorize a material enlargement of the building, as by an addition 12x200 feet.

Same-Intention of Parties-Parol Evidence.- Parol evidence that such an alteration was contemplated by the parties when the insurance was made is not admissible to vary the effect of the written contract.

Use of Premises-Description of Property.-A contract of insurance, made for a period of years, upon a mili building and machinery, while the process of construction was known to be incomplete and going on, is applicable to the property when complete as contemplated by the parties. A description of the property as a “saw-mill building” had pot the effect to restrict the use to the purpose of a saw-mill.

Frosts Detroit Lumber and Wooden-Ware Works v. Millers and Man'f'rg' Mut. Ins. Co. (Minn. S. C.), 34 Northwestern Reporter (Sept. 10, 1887), p. 35; 36 Albany Low Journal (Oct. 22, 1887), p. 337.

Misstatements in Application--Knowledge of Agent-Evidence. -Evidence that the application was made out by an agent of the company with full knowledge as to the condition of the premises, and that plaintiff did not know what representations it contained. Held, admissible under an issue of misrepresentations. The defendants can not take advantage of misstatements in the application made by their own agent, and known by him to be false.

Loss--Evidence of Loss of Property not Insured.—Where defendant alleges that plaintiff burned his own property, evidence on the part of plaintiff showing the loss of other property besides that which was insured is admissible.

Proof of Loss-Evidence-Affidavit of Loss. It is not prejudicial error to permit the plaintiff to read in evidence his affidavit, prepared soon after the fire, making proof of the loss, where he has testified fully as to the facts within his knowledge, and where the effect of such evidence is expressly limited by the court to show that the plaintiff has made such affidavit.

Policy-Application-Description of Property.-- Where the application, in describing the property, included the cellar under the building, but in the policy the cellar was omitted, and reference was made to the application for a more particular description. Held, that the cellar was covered by the insurance.

Menk v. Home Mutual Ins. Co. (Cal. S. C.), 14 Pacific Reporter (Sept. 29, 1887), p. 837.

Forfeiture-Increase of Risk.--An insurance policy provided that, if the risk should be increased by any means whatever within the control of the assured, without the consent of the company, the policy should be void. The property, which consisted of a stock of goods, was described as "contained in the first floor and basement of the building." Held, that a removal of the entire property from the first floor to the basement would not avoid the policy, though the risk were increased by such removal.

Same--Construction of Policy--Conflicting Clauses.--Where a policy upon a “stock of candies, confectionery, toys, fruit, and all such other stock as is usually kept for sale in confectionery stores,” provided that such policy should cease and determine if * * * fire-works should be kept temporarily or otherwise in the stock of merchandise # * * insured herein, it was held, that if fire-works were usually kept in stocks of the kind insured the written part of the policy would control the printed part, and the keeping of fire-works would not avoid the policy.

Same--Loss--Fraudulent Burning.--Plaintiff was charged with the fraudulent burning of the property. The only evidence upon this point was that there was a social gathering in the store upon the evening before the fire; that plaintiff and her husband did not leave the place until three o'clock in the morning; that the husband closed the store for the night, took the key with him, and that they went directly to their house. The fire broke out a little after six in the morning, in the basement. The evidence was clear that some one had entered the building and set the property on fire, and there was no evidence that the building had been broken into, or that any one but plaintiff's husband had the key to the outer door. Held, that there was no evidence that plaintiff herself was privy to the burning, and that she would not be affected by the fraudulent burning of the property by her husband.

Witness--Discrediting--Discretion of Court.--Plaintiff's husband was asked, upon cross-examination, whether he was not out upon bail, charged with an assault with intent to murder. Held, that such question was within the discretion of the court, and its exclusion could not be claimed as error.

Plinsky v. Germania F. & M. Ins. Co. (U. S. C. C.), 32 Federal Reporter (Oct. 18, 1887), p. 47.

Premium- Contract-- Powers of Agent-Estoppel.--Where an insurance agent, clothed with all apparent authority, received defendants' note for a first premium, and agreed in writing with them that, if unsatisfactory, they might reject the policy, and the note would be returned, both note and agreement constituted the contract between the parties, and, upon the policy being rejected, the company can not sue on the note, and claim that their agent had no authority to make the written agreement.

Jocoway and others v. German Ins. Co. (Ark. S. C.), 5 Southwestern Reporter (Oct. 10–17, 1887), p. 339.

Limitation of Action-Condition of Policy--Statute.--In an action commenced more than six months after loss, upon a policy of fire insurance which, by its terms, limited the time for commencement of actions thereunder to six months next succeeding the day upon which the loss should occur, and gave the company sixty days after the receipt of sufficient and satisfactory proof in which to pay the loss, the defendant pleaded the former condition in bar, and the plaintiff's demurrer thereto was sustained. Held, that the condition limiting the time for the commencement of action under the policy to a period less than that prescribed by the statute of limitations is valid, and that the latter provision did not operate to extend the time beyond the six months.

Virginia F. & M. Ins. Co. v. Wells, Trust. (Va. C. A.), 3 Southeastern Reporter (Oct. 18, 1887), p. 349.

Action on Policy-Application as Evidence.-In an action on a policy of insurance it is error to admit the policy in evidence, over objection of the defendant, without the application, when it appears by the petition, and it is admitted in the answer, that the application by the express terms of the policy is made a part of the contract.

Same-Instructions - Ignoring Application.-Where a policy of insurance shows that the application upon which it was issued was, by the express terms of the policy, made a part of the contract, it is error for the court in stating the issues, or in instructing the jury, to ignore such application and the information therein made by the insured.

Rogers v. Cedar Rapids Ins. Co. (S. C. of Iowa:), 34 Northwestern Reporter (Oct. 22, 1887), p. 202.

Insurance-Loss-Special Limitation of Action Valid.-A condition of a policy of insurance to the effect that no suit shall be brought for loss unless commenced within six months thereafter is valid and binding upon the insured. This may be raised by demurrer to petition under Iowa statute.

Recitals in Policy Binding on Insured.-An insured by accepting a policy of insurance assents to and is bound by the conditions therein recited.

Preliminary Agreement. The final contract of the parties, as evi denced by policy of insurance, can not be waived by a preliminary agreement, not referred to therein.

Moore v. Slate Ins. Co. (S. C. of Iowa), 34 Northwestern Reporter (Oct 22, 1887), p. 183.

Statute-Parties Plaintiff.—Where an insurance policy is issued to the owner of a building, by which his loss is payable to a creditor as his interest may appear, and the amount of loss exceeds the debt due the latter, both such parties may, under R. S. Ind. 1881, sections 262, 289, providing for the joinder of parties having an interest in the subject of the action and in obtaining the relief demanded,” maintain a joint action on the policy.

Policy - Acknowledging Payment of Premium - Estoppel.Where a policy, duly executed and delivered, recites that the premium has been paid, the company will be estopped, in an action on the policy, from denying the same, unless it was procured by fraud or mistake; and where the company's agent receives, instead of cash, a credit upon his account due the assured, agreeing to become responsible to the company therefor, and it is credited to the company in his account therewith, and duly forwarded with his next report, but after the fire, the policy can not be avoided in the absence of fraud, notwithstanding a stipulation therein that “the company shall not be liable by virtue of the policy until the premium thereof be actually paid," and that the policy was not delivered until after the fire.

Insurable Interest—Title.-One who has taken a conveyance of property in good faith, and gone into possession, claiming to be the owner in fee simple, has an insurable interest therein; and, in an action upon a policy issued thereon, the insurance company can raise no question as to the validity of his title.

Home Ins. Co. v. Gilman, Ex'r (Ind. S. C.), 13 Northeastern Reporter (Oct. 21-28, 1887), p. 118; 10 Western Reporter (Oct. 22, 1887), p. 842.

Compromise of Loss-Rescission for Fraud-Return of Consid. eration.—Plaintiff settled a loss under a fire insurance policy for a small consideration, and subsequently brought an action upon the policy, in which he claimed that the compromise had been induced by fraud; but he had not, before action brought, rescinded the settlement by offering to return the consideration for it. Held, that he could not recover.

Home Ins. Co. v. Howard (Ind. S. C.), 13 Northeastern Reporter (Oct. 2128, 1887), p. 103.

Insurance by Contractor-For Benefit of Whom It May Concern”—Rights of Materialman. -A land-owner and a builder entered into a written contract for the erection of a building on the former's land, wherein it was provided that "the party of the second part (the builder) shall keep the said building at all times fully insured against fire, for the benefit of whom it may concern; and in the case of loss the indemnity shall be divided between the parties hereto, according to their respective interests in the property destroyed.” The contractor insured the building accordingly, and the policy was assigned by him to the land-owner. Plaintiffs furnished the contractor material upon the credit of the building. A loss having occurred, the insurance money was paid to the land-owner, and the plaintiffs sued him for so much thereof as would satisfy their claim. Held, that the expression “for the benefit of whom it may concern" applied only to the parties to the contract; and there being no evidence that the insurance was to be for the plaintiffs’ benefit, or evidence of a subsequent promise to pay them therefrom, their action was not maintainable.

Mosser et al. v. Donaldson (Pa. S. C.), 9 Central Reporter (Oct. 27, 1887), p. 153; 10 Allantic Reporter (Nov. 2, 1887), p. 766; 25 Central Law Journal (Nov. 18, 1887), p. 458.

Insurance of Royalty Contracts-Wager.-Plaintiff licensed E. & Co. to use certain patents in consideration of specified royalties to be paid for euch use. Defendant insured plaintiff against the loss of such royalties by fire to the premises of E. & Co. Held, that the royalties were capable of supporting an insurance, and that the policy of insurance was not a wager policy.

Same-Loss-Measure of Damages.—Plaintiff was paid certain royalties by E. & Co. for the use of a patent, which royalties were insured by defendant under the following agreement: “Whereas, E. & Co., by virtue of an agreement with the assured, are bound to pay them royalties for the privilege of using their patent, which royalties are guarantied to amount to $250 a month, now, therefore, the conditions of this insurance are that, in case the premises occupied by E. & Co. shall be damaged by fire so as to cause a diminution of said royalties, this com pany will make good to the insured the amount of such diminution during the restoration of said premises to their producing capacity immediately before said fire,” etc. Held, that the proper construction of the contract was that all the royalties payable under the contract between plaintiff and E. & Co. were insured, and not merely the guarantied minimum of $250 per month.

Same-Evidence of Damage.-In this action the loss to plaintiff was measured by the amount of royalties paid for two months immediately preceding the fire, during the time the works were being restored, and for some months thereafter. Held, that this was a proper mode of ascertaining the loss.

Same-Admissibility of Evidence. The agreement between plaintiff and E. & Co. as to the payment of the royalties was proper evidence in the case.

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