| Vt. | Aug 15, 1878
The opinion of the court was delivered by
I. It was competent for the plaintiff to show that A. 0. Brown, the defendant’s agent, who effected the insurance, had knowledge of the property insured and its situation. The testimony of Mills was introduced for this purpose, and had a tendency to show that Brown had such knowledge. But it appeared from Mills’s testimony that on the occasion testified to, when Brown was present at the plaintiff’s store-house, he was accompanied by a third person, an agent for the Hudson Insurance Company, which also had a policy on the same property. This agent went into the store-house, while Brown remained outside. The witness, against the exception of the defendant, was allowed to testify to a conversation he had with this agent while in the storehouse. It does not appear from the exceptions that Brown was so far removed from the witness at the time of the conversation that he could not have heard the same. If the conversation was in his hearing, and so in his presence, it was admissible. It is incumbent on the excepting party to show that the evidence objected to was clearly inadmissible. This is not shown by the exceptions. But if it should be held that by a fair construction of the exceptions Brown was so situated that he could not hear this conversation, we think it was not of that character that its immateriality to any of the issues disclosed by the exceptions, would warrant this court in reversing the case. As this agent was not in any sense the agent of the defendant, what transpired between hi'rn and the witness when Brown Vas not present so as to hear the same, would not affect the defendant, and for that reason their conversation about the property would be inadmissible for immateriality. It is not immateriality alone of testimony
II. We do not think that the defendant was entitled to have the jury instructed in accordance with his second request, and that the instruction given upon this branch of the case was correct. The request and instruction relate to this provision in the policy. “ If the interest of the assured in the property be any other than the entire, unconditional and sole ownership of the property for the use and benefit of the assured ... it must be so represented to the company, and so expressed in the written part of the policy, otherwise the policy shall be void.” The request assumes that, if by the performance on their part by Woodward and Ramsdell, they might reap some benefit and advantage from the sale of the hulless oats, although their ownership was entirely in the plaintiff, his ownership was not for his use and benefit. But we do not so regard it. By the performance of the contracts by Woodward and Ramsdell the plaintiff would reap, doubtless, as much if not greater benefit and advantage from his ownership of the oats than would they. His ownership was therefore for his own use and benefit. That it might also be of some advantage and benefit to Woodward and Ramsdell, and so prove an adequate compensation for the performance of their contracts in the sale of the oats, does not make the plaintiff’s ownership of the oats for the use and benefit’of Woodward and Rams-dell within the meaning of this clause of the policy. Under the instruction of the court the jury have found that the only use and benefit which the plaintiff’s ownership of the oats was to Woodward and Ramsdell, was that it might operate to compensate them for the performance of their contracts with him in the sale of the oats. Whether it should so operate, depended upon whether a profit was derived from their sale. If a profit was derived from their sale, it operated to the use and benefit of the plaintiff directly and wholly, but only indirectly and by way of compensa
III. The defendant requested the court to instruct the jury that if the plaintiff at the time of the application for the policy in question made a substantial overvaluation of the property, the contract was null and void,- and the plaintiff was not entitled to recover. The court refused so to instruct the jury, but did instruct them, in substance, that in order for such overvaluation to avoid the policy, it must have been made by the plaintiff knowingly and intentionally, to induce the contract of insurance, and that the contract was made in reliance on such overvaluation. This is the usual instruction for the avoidance of any contract procured by fraud, and is applicable to this class of contracts as well as others, where the contract itself contains no stipulation in regard to the effect of overvaluation. In the cases cited by the plaintiff in support of the instruction, so far as they have been furnished for examination, with a single exception, the policies contained no express stipulation in regard to the effect of overvaluation. Some had no stipulation whatever bearing upon its effect in the contract, and others contained a stipulation that any misrepresentation by the assured material to the risk should avoid the policy. In regard to this latter class, it has been correctly held, that, in a policy not valued, that is, where by the terms of the policy the value of the property insured was not definitely determined, but left open to be determined by evidence aliunde, overvaluation by the assured was not material to the risk, and would not avoid the policy unless fraudulently made. The single exception is Bonhan v. The Iowa Central Ins. Co. 25 Iowa, 329, in which the. policy contained a stipulation in regard to the effect of overvaluation like the one in the case at bar. . The court were not agreed upon the ground of the decision, part of the court holding that on the facts found there was not an overvaluation by the assured, or that it did not appear that there was, and a part that it was not found that such overvaluation, if it existed, was fraudulent. So far as the decision is placed on the latter ground we think it is not supported by the better considered cases.