50 Pa. 299 | Pa. | 1865
The opinion of the court was delivered, by
The first three assignments of error are of no
The property was represented as unencumbered, when in truth it was encumbered by judgments to a large amount. The fact misrepresented was a most material one, bearing directly upon the degree of hazard involved in making an insurance. The hazard may well be regarded as greater when the interest of the insured is lessened by encumbrances upon his title. But whether material to the risk or not, the warranty of the plaintiff made absence of encumbrances a condition precedent to the defendant’s liability. It was to remove, if possible, this obstacle to his recovery on the contract that the plaintiff offered the testimony of Theodore W. Herr, as tending to show that the misrepresentation which was warranted, had been introduced into the application by mistake, and that therefore the contract should be read as if the property had been represented as encumbered. Had the evidence been received it would have proved, what doubtless is
Another very material fact was, that prior to the issue of the policy, the company had instructed their agent that policies might be issued upon buildings the title of which was thus held, and that property thus situated was not encumbered within the meaning of the application and policy. It was also in the case that after the policy had issued, and after the application 'and premium-note had been returned to the company by the agent, who then informed them of the state of the title, they made assessments and collected them from the assured. In view of this state of facts, the case
It follows that the evidence offered could not have availed the plaintiff had it been received, and it was therefore rightly rejected.
Judgment affirmed.