55 P. 435 | Or. | 1898
delivered the opinion of the court.
This is an action to recover a fire- loss on an alleged oral contract of insurance. The substance of the complaint is that on May 24, 1895, plaintiff was the owner of a stock of paints, oils, varnishes, etc., located in a frame building erected on leased land in Portland, Oregon, and, being desirous of securing indemnity against loss by fire, promised defendant that if it would insure said property for one year from that day, at 12 o’clock noon, plaintiff would pay upon demand the usual and customary rate therefor; that defendant accepted the offer, and insured the property upon the terms specified, and agreed that a policy evidencing the contract should be forthwith issued ; that on June 2, 1895, said property was damaged by fire to the extent of $9,206.82; that prior to the commencement of the action plaintiff tendered to defendant the sum of $32.50, the premium agreed upon, and demanded the delivery of the policy ; but defendant refused to accept the offer or to comply
It is contended by defendant’s counsel that the court erred in admitting certain testimony over their objection, and in refusing to grant a judgment of nonsuit. A stipulation entered into between counsel for the parties was introduced and read in evidence, but is not incorporated in the bill of exceptions. Its contents, however, may be inferred from the following statement made by the court: “Gentleman of the jury: In this case it has been stipulated by the parties that prior to the commencement of this action the plaintiff in this case tendered to Clemens & McFarland, who were the agents of the Norwich Union Fire Insurance Society — the local agents here at Portland, Oregon — to issue a policy of insurance, the sum of $32.50 ; that this was tendered within thirty days after the property was destroyed by fire. This is the amount of the premium which would, they say, have been due upon the policy of insurance of $1,000. Therefore there will be no evidence admitted differently. It is also agreed that that premium was tendered to them, and it was not accepted. It is also agreed that Clemens & McFarland were the local agents at Portland, Oregon, of this Norwich Union Insurance Society, and that they were empowered to issue a policy of this kind.-” Mr. Sears, Counsel for Defendant: “That was a little broader, if your honor pleases, than the statement, I think, of the stipulation. It is admitted that that was tendered, and that that was the usual and customary charge by insurance companies for a policy of $1,000 described in the complaint, and that Clemens & McFarland were the local agents ; but it is not stipulated that
W. L. Lindhard, being called as a witness, testified, in substance, that he, as plaintiff’s manager, operated its store on Front and First and a factory on Fourteenth and Kearney streets, in the City of Portland; that on May 24, 1895, plaintiff was the owner of a stock of paints, oils, etc., located within said factory; and that on said day he entered into an agreement for insurance with defendant; whereupon the following questions and answers were asked and given : “Q. You may state all the conversation .that took place at that agreement, where it was, and who was present. A. There was no one present at the time the agreement was made. So I came out of the store, and walked about half a block down to the corner of First and Stark streets, when Mr. McFarland met me, and he halted me, saying, T was just going up to your office, to find out if I could renew the policy falling due soon on your store.’ I asked him what company he represented. He said, ‘The Norwich Union,’ and I then said, ‘I thought that was Henry Dosch’s company.’ He said, ‘It belongs to me now ; it is mine now.’ I said, ‘You may write that policy, provided you take a similar amount on the stock of the factory. Q. [Cross.] The twenty-fourth of May you are talking about? A. I
Reversed.