71 Pa. 422 | Pa. | 1872
The opinion of the court was delivered, by
The offer of the plaintiff below, the rejection of which, by the court, forms the subject of the first assignment of error, was not an offer to prove a usage, to give a construction to the contract. But it was an offer to show that the defendants, the insurance company, had in other instances, and as to other parties, waived a compliance with the condition or regulation requiring that, in case of a transfer, notice should be given to them, and the policy surrendered to be cancelled. Of what avail is it to cite cases to prove that an insurance company may waive a compliance with its own rules, or the conditions of the contract? There was no offer to prove a waiver in this case, but it was to prove that notwithstanding the charter of the company, which provided that “ when any property insured in this company shall be aliened by sale or otherwise, the policy shall therefrom be void, and shall be surrendered to the directors to be cancelled,” the company always have permitted, and do now permit such transfers to be made, and that they have great numbers of these transfers in possession. The case of Helme v. The Philadelphia Life Ins. Co., 11 P. F. Smith 107, does not support the contention of plaintiff in error. There, the offer was not to show that the insurance company sued, had, in other instances, allowed thirty days grace for the payment of premiums due, when a clause for forfeiture for non-payment on the day existed; but that such was the custom of all life insurance companies. In other words, the offer was to prove a usage of trade — which has always been held competent to give a construction to the terms of a contract.
The second assignment of error is to the answer of the court to the point of the plaintiff below, which was, in effect, that inasmuch as the policy of insurance on its face was assignable, and the plaintiff had no knowledge of the provisions of the charter, he was, nevertheless, entitled to recover. 'But it is very clear that this being a mutual insurance company, all persons insured become members; and Henry Diegle, the party originally insured, must be held to have known the provisions of the charter. A policy
Judgment affirmed.
