53 Vt. 418 | Vt. | 1881
The opinion of the court was delivered by
The court directed a verdict for the defendants. The motion for such a verdict embraced four causes :
I. The defence claimed that the contract, and the claim under it, embraced liquors' kept for sale contrary to law, and the fixtures used in such illegal traffic, which was carried on by the plaintiff; and that by reason of such illegality the policy was null and void.
We think that a contract directly insuring liquors intended for illegal sale in violation of the law of this State is invalid. Such contracts are made in order to áfford the assured protection in his illegal acts. Shaw, Oh. J., says: “ Where the direct purpose of a contract is to effect, advance, or encourage acts in violation of law, it is void. But if the contract sought to be enforced is collateral and independent, though in some measure connected with acts done in violation of law, the contract is not void.” Boardman v. The Merrimack M. Fire Ins. Co., 8 Cush. 583. This principle has been applied to contracts of insurance' against fire, by the courts of Massachusetts, in several recent cases. In Kelly v. Home Ins. Co., 97 Mass. 288, the policy was solely upon liquors and the casks containing them ; and in Johnson and another v. Union M. F. Ins. Co., and Lawrence v. National Fire Ins. Co., 127 Mass. 555, upon billiard and drinking saloons, unlicensed, kept in violation of law. At the time the policies in these cases were issued, it must have been apparent to the insurers that the object of the contracts was illegal, unless the insured were duly licensed ; and the cases do not show that any information upon that subject was sought for ; and the insured would have had no cause for complaint, in case of loss, if the defendants insisted upon the illegal nature of the business as a defence. The same subject has been under consideration in Michigan ; and the Supreme Court of that State, in a case almost iden
II. The property insured by one item of the policy was a “ stock in trade consisting principally of groceries, provisions,
In case benzine was covered by the policy, the question raised by the defendant’s counsel as to the power of the agent to waive any of the conditions of the policy does not arise, as the article itself was insured, and it did not require, to render the policy valid, a waiver of the condition, which, being printed, is controlled by the written part of the policy. But in case the jury should find that benzine was not included in the property insured, the question arises as to the effect of a waiver by Mr. Francisco, should the jury find one shown. The policy contains a condition that no agent is empowered to waive any of its conditions without special authority in writing from the company; and the defendant insists that to permit it, without such authority in writing, is to violate the well-settled doctrine that written agreements cannot be altered in that manner. We are not inclined to depart from the doctrine that no parol stipulation, contemporaneous with the contract, can be shown, to vary, add to, or contradict it. A court of law must act on the agreement as made by the parties ; but it is a doctrine no less well settled that a contract not under seal can be changed by a subsequent parol undertaking, and in many instances the companies will be estopped from setting up claims in accordance with the contract as originally made, by having permitted the assured to act in the honest belief that the terms of the contract had been legally altered. The evidence of Francisco’s statement, that the assured might keep benzine, as showing that it was a part of the contract, would be clearly inadmissible, but as showing that the defendant had knowledge that it was kept by the assured, it
III. The policy was dated and originally issued on the 21st day of April, 1875, to Dennis F. Mullin and James Mullin. There is a provision in it that “ 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 . . . otherwise the policy shall be void.” At the time the policy was issued the plaintiff held a lien upon an undivided half of the property, to secure a debt due him from
IV. In October, 1878, the plaintiff became the owner of the insured property, and the policy was transferred to him by consent of the defendant, but the defendant claims that the ownership of the plaintiff was not properly represented to the defendant; that it was not the entire, unconditional and sole ownership, for his use and benefit, which the policy required. If it was not, then the policy was void. We think that admitting all that the testimony in the case has any tendency to show as to the right of the Mullins to any reconveyance of the property to them, that the facts thus proved would not divest the plaintiff of his legal title and owner
Judgment reversed, and cause remanded.