58 P. 276 | Kan. Ct. App. | 1899
The opinion of the court was delivered by
This is an action commenced in the district court of Franklin county upon a policy of insurance. The trial court rendered judgment for the defendant upon the pleadings. The plaintiff below brings the case here for review. The pleadings' are too long to be set forth in this opinion.
The defendant alleged in its answer a breach of that clause of the policy which provides that the policy shall be void “if the subject of insurance be personal property, and be or become encumbered by a chattel mortgage.”
The petition and reply stated facts tending to show a complete waiver of this clause. The facts as stated by plaintiff in error in his brief are, in substance, as follows: John Brown, on October 9, 1894, obtained a loan of $300 from the People’s National Bank, of Ottawa, Kan., on his note, secured by a chattel mortgage on certain wheat, and further to be secured by a policy of insurance on same. The bank’s officer requested Brown to go down-stairs into F. R. Miller’s office and secure a policy from him. Mr. Miller was an insurance agent, having his office in the basement of the bank, and was accustomed to issue policies'to be put up with the bank as collateral. Brown accordingly went to Miller’s office and requested him to issue a policy on the wheat, and paid the premium for it in
In our opinion these facts are not sufficient to constitute a waiver of the provisions of the policy. The second mortgage placed upon the property several days after the policy had been written, without the knowledge or consent of the insurer, is sufficient to avoid the policy. In the case of Insurance Co. v. Saindon, 53 Kan. 623, 36 Pac. 983, the supreme court said :
“ Where an insurance policy provides against fu*529 ture encumbrances, the policy may be avoided if a subsequent encumbrance is created, or if the encumbrances existing at the time of the application for the insurance are materially increased by a new or additional debt, but a mere subsequent renewal of-a prior lien or mortgage, with accrued interest, is not an increase of such preexisting indebtedness or the creation of a new or an additional encumbrance.”
The judgment of the district court is affirmed.