37 Minn. 426 | Minn. | 1887
This action was brought to recover on a policy of fire insurance. A copy of the policy was annexed to the complaint as a part of it. It thus appears that one of the express conditions of
The defendant’s general objections to the introduction of evidence, and particularly to the evidence offered in rebuttal, tending to show that the defendant ought not to be heard to insist upon this condition as a defence, were well taken.
It is further contended that, as appears from the case, the defendant’s liability had ceased at the time of the fire under the conditions of the policy, because an instalment, due June 1st, upon the plaintiff’s premium note, had not been paid. This must be conceded, unless a certain check mailed by the plaintiff June 1st was received by the defendant at Des Moines, Iowa, before the loss occurred, on the 15th of that month. We think that the evidence tended to show that the action of the company in finally declaring its refusal to accept this check, after it had once acknowledged its receipt as though it had been money, was based upon the assumption that it had not been received before the loss, and not upon the ground that it was not money. The evidence on the part of the defendant is that the check was not received until June 19th, and there is nothing to show that it was received before that time, unless that can be presumed from the fact that it was mailed at, or perhaps near, the plaintiff’s residence, in Isanti county, in this state, on the first of June. There is no suffi
For the reasons above stated, a new trial must be allowed.