74 Mo. 167 | Mo. | 1881
On the 25th day of January, 1875, the plaintiff issued to the defendant a policy of insurance against loss by fire, for the period of five years from the 15th day of January, 1875, in pursuance of a written application previously made by him to an agent of the plaintifi, then in Henry county, where the property insured was situated. The defendant paid the premium for one year in cash, and gave his note for the premium for the remaining four years, payable in four annual installments of $12 each. This suit was instituted on Eebruary 3rd, 1877, to recover the two installments then due. It was admitted by the defendant that the plaintiff was duly authorized by the Insurance Department to do business in this State.
The defendant’s testimony appears in the transcript in the following form: The installment note sued on was given to an agent of plaintiff for insurance on his farmhouse and barn and contents for five years. The agent «ame around soliciting insurance, and defendant and the agent made an agreement as to rates and time, and the agent made out an application for insurance which defendant signed and gave to the agent, and has not since seen it. The agent took this note and application, but did not at that time make out or deliver any policy of insurance. As defendant understood, the application and note were sent to the home office for the policy to be made out. In the course of time, shortly after the making of the appli
Ques. — What particular condition did the agent represent that the policy should contain, which was not contained in it, that caused you to refuse to accept the policy?
Ans. — A clause giving me the right to cancel at the end of the year.
Ques. — When you returned the policy to the company did you inform them what your reason was for returning it ?
Ans. — I do not know what Ellis did write. I made the statement to him, and he did the writing.
Ques. — Your application was a written one, was it not?
Ans. — Yes ; all the statements and conversations with the agent were made at the time of signing the application.
The plaintiff objected to that portion of the defendant’s evidence which is in italics, on the ground that he could not be permitted to show any agreement with the agent other than that contained in the written application,
Ellis, who returned the policy, testified that at the request of the defendant, and without other authority, he indorsed on the face of the policy the words, “ Cancelled May 10th, 1875,” and returned it by mail to the plaintiff. This witness further testified that Neiberger told him that the reason he wanted to return the policy was, because he had heard that the company was insolvent, and a forged note had been sent out in favor of the company, against him, and that he did not want to do business with that kind of a company.
The date at which the defendant received the policy in question, is not shown by the record. The written application, which was offered in evidence, was for insurance for the period of five years, for a given sum, which is stated not to be in excess of two-thirds of the cash value of the premises insured. An insurance agent, who stated that, he