delivered the opinion of the court.
This is аn action on a policy issued by the defendant to plaintiff on April 28,1903, insuring against loss or damage by fire to the amount of $2,000, on his stock of umbrellas, parasols, and the material usеd in making the same. At the time the contract of insurance was made the property was covered by a chattel mortgage. The policy, however, that defendant issuеd and delivered to plaintiff, contained a printed clause that it should be void “if the subject of insurance be personal property, and be or become encumbеred by a chattel mortgage.” This policy was issued upon an oral application, the agent of defendant making no inquiry of plaintiff concerning liens or incumbrances оn the property; nor were any statements or representations in reference thereto made by the assured, and he had no knowledge that such information was material, or
The decision of this court in Arthur v. Palatine Ins. Co.
Of the citations given, the only ones directly in point are those from Illinois, Wisconsin, Texas, and the 17th Indiana Appellate Court. In the cases cited from Iowa and the 21st Indiаna Appellate, the courts were construing policies containing a provision requiring the assured, if the property was incumbered, to report that fact to the company, otherwise the policy should be void; and it was held that a failure of the agent to inquire about incumbrances did not excuse the assured from complying with this clause in the contract. The Illinois Appeal case has reference to the admission of parol evidence to show that, at the time of the insurance, the company’s agent consented that the assured might thereafter mortgage the property, notwithstanding the policy contained a stipulation rendering the contract void if the property should become incumbered without the written consent of the company. In the cases from Missouri and North Carolina,
A contract of insurance, like any other contract, must, of course, be given force and effect according to its terms as agreed upon by the parties, but provisions in the printed forms, inserted for the benefit of the insurer, may be wаived by it in special instances. In determining whether there has been such a waiver, a court should not overlook the fact that insurance policies are prepared by the company for general use, without reference to particular, cases, and contain divers and sundry provisions and stipulations concerning different subjects. Thе contract is not like ordinary-contracts between individuals, wherein every clause and stipulation is considered and agreed upon by the parties before the agrеement is executed. A policy of insurance is prepared in the office of the company and becomes binding on the assured because it is delivered to and аccepted by him. In accepting it he has a right to assume thatthe company does not intend to insistupon the printed clause therein relating to incumbrances on the property if it makes no inquiry of him concerning the matter, and he has made no statements in reference thereto, and has not been advised that the question was at all matеrial. The preparation and issuance of the policy is the act of the company, and if, in pursuance of a previous agreement to insure, it issues and delivers а policy purporting to cover loss or damage by fire, and accepts and receives the money of the insured, without making any inquiry of him as to incumbrances, or without advising him of the effect on his contract of ah incumbrance, it is receiving and accepting his money under circumstances but little short of false pretenses, if the contract is vоid from the beginning, and never in fact had any force or validity, because of a provision inserted therein by it without the