29 N.H. 182 | Superior Court of New Hampshire | 1854
This is an action of assumpsit upon a promissory note, for the sum of $180, for value received in policy No. 564, dated January 22, 1849, by which the defendant promises to pay the company this sum, “ in such portions and at such time or times as the directors of said company may, agreeably to their act of incorporation and by-laws,, require,”
An assessment of $18 was made upon this note on the 4th of February, 1850, of which the defendant was notified ; but he refused to pay it, upon the ground that there was no valid and subsisting contract between him and the company.
At the trial, it appeared that the first policy issued in class No. 4 of the company (to which this policy belonged) was No. 50, and that no policy had been issued in that class bearing a lower number, and the defendant contended that the false numbering was a fraud upon him and avoided ■the contract. The defendant’s argument is that this numbering induced him to suppose that there were forty-nine ■more persons than there actually were, who would share all ■losses with him, and that if there were not that number of persons -who had become insured, it would be holding out false colors to him. This consideration, however, appears to us to be altogether too remote to be regarded as evidence
The important question in the case arises upon the evidence relating to the existence of two policies in different companies ; and the defendant considers the question to be settled in his favor, by reason of the sixteenth section of the charter. This provides that if there shall be an insurance in this company, and also in any other company, the insurance in this company shall .be void, unless such double insurance subsist with the consent of the directors, signified by indorsement on the back of the policy, signed by the president and secretary. Much stress is laid upon this section, and it is argued that inasmuch as such indorsement was not made, no action can be maintained on the note. It is very clear that if the only question in the case be whether an indorsement be necessary in general, our decision must be for the defendant. But it is a matter deserving serious inquiry, whether the case can be determined by the provisions of the sixteenth section alone.
There is no doubt that a policy of insurance may be made out complete, in all its forms, and upon its face taking effect from the date therein mentioned, but with an understanding that it should not become operative and binding upon either party until the happening of some certain event. For instance, a policy might be executed in proper form and delivered to the insured, together with the form of a note, to be executed by him and a surety. If, however, it should be proved that the policy was delivered with the agreement that it should not take effect until the execution and delivery of the note, the company would not be liable, if a loss should happen before that time. If we reverse the position of the parties, and suppose a case where a note is
It is not necessary, in this case, to define the powers of the agent of an insurance company, and ascertain how far he may bind his principal, and we do not propose to go any further than to ascertain what was the contract between the defendant and the agent of the company. When the defendant informed the agent that he was already insured in the New Hampshire Mutual Insurance Company, and that he did not wish to be without an insurance, the agent answered “ that it was the custom of the plaintiffs for the applicant to keep his old policy until the new one was received, and the defendant might do so, and he would “fix it so that it would be all right and safe for him.” This tends to sho\v not a contract precisely, but the understanding of the parties that the new policy was not to take effect from its date, but only from the time of its reception by the defendant.
The letters which passed between the parties tend very strongly to show, not that the present policy was void on account of the double insurance, but that it was not to take effect till the other policy was surrendered. In Mr. Goodall’s letter of March 5th, he wrote the company that he told their agent that he was insured in the New Hampshire Mutual; that he wished to surrender his policies there, and take out a policy with the plaintiffs ; that the agent took the applications, and agreed to inform the plaintiffs and have it made all right. He then adds, “ and he told me I might surrender them after I got yours.” He then alludes to the sixteenth section, and desires to have an indorsement made on the back of the policy. In answer to this, Mr. Folsom, the secretary, in his letter of March 7th, says that Mr. Goodall misapprehends the import of the sixteenth section. He
This tends to show the understanding of the parties that, upon the surrender of the policy in the New Hampshire Mutual, the present policy would become effective.
Mr. Folsom also says, in his letter to Mr. Goodall of May 15th, “ I understood by Mr. Gale, our agent, and by your letter of the 5th of March, 1849, that your policies were to be given up in the New Hampshire Mutual, when you received policies from our office. If such is the fact, why should you wish an indorsement, permitting double insurance to subsist where none did subsist, as you would be discharged from the New Hampshire Mutual, when your insurance took effect in our company.” He also states that they had received applications for insurance, “ to b e discharged from other offices when they took effect in ours,” and says, “ you can go into any other office and hold on t o our policies until you receive policies from another office, and then request your policies in our office, to be discharged at the time when they take effect elsewhere.”
This letter also seems to proceed upon the understanding before mentioned.
In Mr. Goodall’s letter to Mr. Dearborn, the treasurer, dated on the 17th of December, he says, “ I have written you before that Gale, as your agent, came, and ,1 told him the property was insured in the New Hampshire and in the New England Mutual Insurance Companies, and was to 1«C by him to keep those on until I received your policies^"; j
The case finds that the defendant surrendered his policy the New Hampshire Mutual, on the 1st of February, 9, after receiving the policy now in dispute. This ac-brought to recover an assessment.of $18 upon the
The only question for the court now is, whether we should render judgment upon the verdict, upon the ground that the policy was valid, because of the agreement between the parties, or whether we shall set it aside for the purpose of enabling the parties to lay the evidence of the agreement before the jury. In the latter case, the question for the jury will be whether it was the understanding that the present policy was not to take effect until the surrender of the policy in the New Hampshire Mutual. The defendant can, if he desire, have an opportunity to apply to the judge who tried the cause for an amendment of the case; or if he has misapprehended the true question at issue, he may, upon proper
Judgment on the verdict.