75 Mo. App. 394 | Mo. Ct. App. | 1898
The house was burned on the eighteenth day of December, 1893. The defendant having refused to pay the loss, the plaintiff paid its debt to the building association, and thereupon instituted the present action on the policy. The defendant admitted the issuance of the policy, and the destruction of the building, but defended the action on the grounds that the plaintiff had failed to give immediate notice of the loss; had failed to furnish proofs of loss, and
As to the question of failure to occupy, the plaintiff makes two contentions, first, that by the terms of the policy he had forty-five days to complete and occupy the house, instead of thirty, as contended by the defendant; or, second, if the defendant is right in its construction, then by its acts and conduct it likewise waived a breach of this condition or requirement. As to the first contention the plaintiff is wrong. The written indorsement allowing thirty days for the construction of the house superseded the printed conditions of the policy until the- house was completed and occupied. (1 May on Insurance [3 Ed.], sec. 177.) The printed requirements as to vacancies and the making of repairs are applicable to ordinary policies — that is, to houses that are completed and occupied. As to such risks a vacancy of more than ten days avoids the policy, and the making of repairs which extend beyond fifteen days likewise avoids it. Here the house was unfinished and by special agreement the plaintiff was given thirty days to complete and occupy it. The other conditions or limitations referred to were only intended to apply after the house had been completed and occupied according to the special contract. It would, in our opinion,, be a forced and unreasonable construction of the policy to allow the limit of thirty 'days to be extended by tacking onto it either of the other limitations.
_ Finally it is urged that the correspondence of the defendant with the building association concerning the loss, evinces an intention by the defendant to waive the breaches of the conditions of the policy. Under the separate agreement with the building association the defendant agreed to indemnify it in case of loss, regardless of acts of omission or commission on the part of the plaintiff. In this separate agreement the plaintiff had no concern,'nor was he prejudiced by it. The authorities treat such an agreement as a separate and independent contract of insurance. Ins. Co. v. Coverdale, 29 Pac. Rep. (Kan.) 682; Ulster v.
It follows that the circuit court did right in directing a nonsuit, and the judgment will therefore be affirmed.