168 Ill. 309 | Ill. | 1897
delivered the ópinion of the court:
By the stipulation in the policy, the terms of which are plain, direct and unambiguous, the parties hereto agreed that if the insured property, at the time the insurance was effected, was encumbered by chattel mortgage, the indemnity should not attach but the policy should be void. This was the contract of the parties deliberately made, and the only question presented is, whether they are bound by it. They were competent to enter into the stipulation, no rule of law was contravened by it, and there is no ground apparent to us upon which to base a claim of either estoppel or waiver.
The law declared by the greater weight of authority is, that where a policy contains a stipulation such as the one in the case at bar, and the property be, at the time of the execution of the policy, covered by a mortgage, no recovery can be had unless it appears that there was a waiver or estoppel by which the company is precluded from relying on the contract. It was so expressly ruled in Wilcox v. Continental Ins. Co. 55 N. W. Rep. 188, Wierengo v. American Fire Ins. Co. 57 id. 833, Smith v. Columbia Ins. Co. 17 Pa. St. 253, Pennsylvania Ins. Co. v. Gottsman, 48 id. 151, and Fitchburg Bank v. Amazon Ins. Co. 125 Mass. 431. The principle upon which these decisions rest was recognized and applied by this court in Reaper City Ins. Co. v. Brennan, 58 Ill. 158, and Hebner v. Palatine Ins. Co. 157 id. 144.
The judgment of the Appellate Court is affirmed.
Judgment affirmed.