133 Wis. 361 | Wis. | 1907
The amendment of the findings in the equity suit brought to reform the application and policy in question was within the power of the court below. Keep v. Bander-son, 12 Wis. 352; sec. 2832, Stats. (1898). The dismissal of a complaint in a suit in equity on the ground that the plaintiff has mistaken his remedy and should have proceeded at law is no bar to the legal action thereafter commenced. Cramer v. Moore, 36 Ohio St. 347; Lore’s Lessee v. Truman, 10 Ohio St. 45; Pfennig v. Griffith, 29 Wis. 618. If it is at all material to the questions involved in this appeal, the jury was authorized to infer from the acts of Moody in transmitting the application of the plaintiff and the defendant’s acceptance of the application that Moody was an agent of the defendant. Sec. 1977, Stats. (1898), as on and prior to January 10, 1905; John R. Davis L. Co. v. Hartford F. Ins. Co. 95 Wis. 226, 70 N. W. 84. It is quite manifest that the principal question litigated between the parties was whether or not the defendant, or some one in its behalf, after having on January 10, 1905, accepted the application of the plaintiff for a policy of insurance to begin on January 2, 1905, changed the same after the fire loss so as to read
This testimony raised a square issue of fact with reference to tbe acceptance of this application to begin January 2, 1905, or January 12, 1905, and upon this tbe jury found against tbe defendant to the effect that tbe secretaiy and' president of tbe defendant accepted said application for insurance as it was written at tbe time it was received;'that is
“If the application be made to an agent representing several companies, the particular company or companies to carry the risk must be designated, with the amount each is to carry,*367 and each, by its- agent or otherwise, must agree to take tbe risk; that is, must make answer to tbe application, accepting it, direct or otherwise, by verbal communication, or by posting such communication. Without all these elements there •can be no binding contract.” Strohn v. Hartford F. Ins. Co. 37 Wis. 625.
In 16 Am. & Eng. Ency. of Law (2d ed.) 849, 850, 851, many cases are collected which support the statement there found in words following:
“If the parties have not agreed on the subject of insurance, 'the limit and duration of the risk, the perils insured against, the amount to be paid in the event of a loss, the rate of premium, or upon any other element or term which may be peculiar to the particular contract, whatever may have been the negotiations or propositions passing between them, these have not reached the form and obligation of a subsisting contract.”
In the case at bar there is no evidence that the defendant ¡accepted the application otherwise than for a period of three .years, and there is no evidence that the plaintiff received the policy or was informed of this material addition to his application or proposal or even knew the name of the company in which he claims to have been insured at any time prior to 'the fire loss in question. This would bring the plaintiff’s •claim within the. rules and decisions above quoted, which harmonize with the general rules of law relating to- contracts by offer and acceptance. Russell v. Falls Mfg. Co. 106 Wis. 329, 82 N. W. 134; Kreutzer v. Lynch, 122 Wis. 474, 100 N. W. 887, and cases cited.
It follows that the judgment of the circuit court must he •reversed with directions to dismiss the complaint.
By the Court. — The judgment of the circuit court is reversed, and the cause remanded with directions to dismiss 'the complaint.