20 Wis. 205 | Wis. | 1865
Lead Opinion
Tbe following opinion was filed at tbe June term, 1865:
Tbe pobcy of insurance provides tbat in case of loss “tbe assured shall forthwith give notice of said loss to tbe said company, and as soon after as possible render a partió-
It is insisted that the insured should have given, under oath, as part of the preliminary proofs, a cojDy of the written portion of the policy for three hundred dollars; and that, he not haying done this, the plaintiffs cannot recover. It seems to us that this position is well taken. The giving of the copy was a condition precedent. The counsel fox the plaintiffs has very ingeniously argued that the words requiring the copy only pointed out one of the modes in which information of the additional insurance might be given, and that any description in the affidavit giving truly the amount, number, date of the policy, and name of the company which issued it, was sufficient. It is true that the policy provides that the insured shall state what other insurance has been made on the property; and in making this statement he may give all the information which the copy of the written portion of the policy would contain. But it does not follow that there is not in any case any advantage to the company from the clause requiring the copy. We see not why the company may not make it a condition precedent that the information shall be given in a particular mode, even though it adopted an arbitrary, and, as it might appear to us, a useless rule. It is not our province to make conditions or agreements for the parties, but so to construe those made by themselves as not to fritter away the rights of either party It appears to us that the provision requiring the copy is an important one. Itprac-
By the Gourt. — The judgment of the court below is affirmed, with costs.
A motion for a rehearing was denied at the January term, 1866.
Rehearing
It is urged on the motion for a rehearing that the affidavit of JDe Demor did give substantially a copy of the written portion of the policy issued by the Mechanics’ Mutual Insurance Co. There is certainly nothing in the affidavit showing that it does. This affidavit states the company, the number of the policy, the amount insured, and on what; but it does not state that the written portion of the policy contained nothing more. The written portions of a policy often contain important special agreements, varying or being in .addition to the printed portions. The affidavit does not even purport to give, to the best of the recollection or belief of the affiant, either a copy of the written 'portion of the policy ox the whole of the information contained in the written portion. Eor these reasons, as well as those stated in the former opinion, the motion must be overruled.
By the Court. — Motion denied.