40 W. Va. 508 | W. Va. | 1895
This was a suit in equity in the Circuit Court of Wood county by Walter L. Croft against the Hanover Fire Insurance Company and the Citizens’ Fire Insuance Company for the specific performance of an agreement to issue a policy of insurance upon a dwelling house; which was consumed, by fire. The court decreed that the insurance companies pay the insurance stipulated for, and the companies appeal.
No policy was actually issued, but the suit is based on an oral contract to insure and to issue a policy accordingly. As the “Statutes of Frauds and Perjuries,” so called (Code, c. 98) does not apply to insurance, an agreement to insure need not be in writing. Wood, Ins. § 4; May, Ins. § 14; Insurance Co. v. Colt, 20 Wall. 560. I do not think clause 7 of chapter 98 of the Code applies to the case, even if the policy agreed upon was for three years. Kimmons v. Oldham, 27 W. Va. 258.
When a contract for insurance has been made, but no policy to evidence it has been issued, the remedy of the insured, after loss, may be by bill in equity, on the principle of specific performance; and the court does not simply decree the specific performance of the agreement by the actual execution of a policy of insurance, and then compel the insured to bring an action on that policy, but, to avoid multiplicity of actions and delay, having the parties before it properly for specific performance, will at once decree the payment of the amount which would be recoverable under the policy if issued, agreeably to that principle of equity practice that as all the necessary parties are before the court for one purpose, it will give full and complete relief, and not send them to another court. Wooddy v. Insurance Co., 31 Gratt. 362; May. Ins. § 565; Wood, Ins. §§ 11, 12; Insurance Co. v. Colt, 20 Wall. 560. Or he may sue at law, by same authorities.
But the defendant companies say there was no contract
The chief point of question in the contract, as it seems to me, is as to the length of time the policy was to run. It has been stated above that this is an essential element in a valid contract. The parties must agree upon a time for the duration of the policy. The plaintiff says that he applied for a policy on his dwelling house for one year, and understood that the agreement with the agents was for one year. One of the agents says he understood it to be three years. The agent says he made no memorandum in writing on this occasion. According to the evidence on both sides, in that interim an agreement was made for the insurance of the dwelling house in such sum as the agents.
About one month after this, a brother of the plaintiff, by authority of his brother,, met the one of the agents who had negotiated for the policy, and asked the agent for it, and was told that it had nor been made out, as he had not satisfied himself as to the amount for which the policy should be written. The plaintiff’s brother told the agent he wished it fixed up, and the agent himself says that he told the brother that he would fix it then as far as he could, as he was on his way to the train to go on a trip, but would attend to it; and he then wrote in a private memorandum book this memorandum: “W. M. Croft, $600.00 on one-story fr. shingle roof dwell., near Davisville, 1% — 3 yrs. N. Y. Underwriters.” The brother told him to send the policy, and he would send the money to pay the premium, to which the agent assented. The evidence shows the agent agreed to credit; did not demand prepayment. It is not claimed otherwise.
About a month after this interview between this agent and the plaintiff’s brother, the house was destroyed by fire, and this brother, the next day, called on the agents, and asked for the policy. The agent said he had written it, but had mislaid it, and searched and could not find it, and said he would look for it, and to call later, and then the brother informed him of the fire. In the afternoon the brother called again for the policy, but the agent had not found it. Later this agent concluded he had never written it up. After this the plaintiff tendered the agent the premium money, but he declined it, saying that he had informed the company of the fire, and the adjuster would soon come, and, “under the circumstances,” he would not take the money.
Itiscontendedforthedefense that no company was named
There is an indirect allusion in brief of counsel to the nonpayment of the premium, but the point is not distinctly made. It would be untenable. The proof is full that the •agreement was that -when the policy should be sent, Croft would bring or send the money, or it could be charged to his father, and the agents assented. Now, insurance can be sold on credit as well as anything else. The agent can give credit. Eagan v. Insurance Co., 10 W. Va. 583, 588; Wood, Ins. § 28; May, Ins. § 360 D; Insurance Co v. Colt, 20 Wall. 560; Long v. Insurance Co. (Pa. Sup.) 21 Am. St. Rep. 883, note, 20 Atl. 1014. Pre-payment is not necessary to the conclusion of an oral contract. Wood, Ins. §§ 22 A, 43 B. But, in addition, if credit had not been given, there was no obligation to pay until the policy was ready, to be delivered, and the companies were to do that, and did not, though asked to do so. Wood, Ins. §§ 29, 30; May, Ins. §§ 22 A, 43 C.
The agent made out the memorandum in the name of W. M. Croft, not in that of plaintiff, Walter L. Croft, by mistake. The plaintiff owned the house and applied for the insurance, and made the agreement. From the fact that his father, W. M. Croft, had insurance from these agents, and the latter thought that the father owned the house, the mistake was made by the agent. The plaintiff says he told him the house was his. No pretense or claim of falsehood
Variance. This' is relied on in a brief of counsel. As regards the matter last spoken of — the name — there can be no variance between allegation and proof. The bill alleges the oral contract as made with the plaintiff, and, as I have shown, the proof is of a contract made with the plaintiff. The memorandum is not the contract sued on; and if it were,
Variance as to Date of Contract. There is no variance between bill and proof in this respect. The bill says that “about the middle of July, 1891, the plaintiff applied to the agent for the insurance," etc., “and that at that time, to wit, July, 1891,” a certain agreement was made. The proof shows, I think, that this was on the 11th of August. Is it possible that we must, in a suit of equity, overthrow the decree for this? There is no variance. The substance and real point of the allegation is that a contract of insurance was made. The date is not material. Even if the bill said it was on a fixed day in July, it would not be fatal, the agreement not being a writing. Even in formal law actions, allegations of “time, place, quantity and value, when not descriptive of the identity of the subject of action, will be found immaterial, and need not be proved strictly as alleged. Thus, in trespass, the material fact is the assault, the time and place not being material.” 1 Greenl. Ev. § 61. A distinction exists between allegations of matters of “substance,’- and matters of “essential description.” The former may be substantially proven; the latter must be proven with a degree of strictness extending in some cases even to literal precision. Id. § 56. But here the bill' does not tie itself to a fixed date, but is “about the middle of July.” Vow, if it were a note or instrument described by date, it would then be, in the words of Greenleaf, “matter of essential description,” the earmark of identity, and strict proof would be required, and such cases as Scott v. Baker, 3 W. Va. 285, would apply. This date is not matter of substance, but the substance is the contract and its essential elements. If there were a variance in them, it would be different. Therefore, cases like Railroad Co. v. Skeels, 3 W. Va. 556, and James v. Adams, 8 W. Va. 576, do not apply.
Substantial and even-handed justice has been done in the
The agents agreed with the plaintiff, for a given consideration, to insure a particular house owned by plaintiff, in a sum which ilie agent was to and did fix and for a period of time covering the date of the loss by fire. Nothing remained to be done but issue the policy, which the agent promised to do. These things he himself proved. Both parties understood that the plaintiff- was insured. Every element was final to base that policy on. The agents were authorized to issue it. His own memorandum told him every single element from which to issue it, except the name of the insured; and, had he issued it in the wrong name, the mistake could be corrected, and a suit maintained upon it. The only thing wanting is the policy to perfect the insurance. Whose fault that it was not issued? Where is the plaintiff in fault or default? To decide the case against the plaintiff, his house is lost, without the indemnity he fairly contracted for; to decide against the defendants is only to make them do what they fairly contracted to do. The defense set up at first blush inspires some questions; but, on consideration, it becomes a figment, which withers away.
Courts must not let insurance companies evade their policies through mere technicalities. They must be treated fairly, and only held up to their fair engagements. They are very valuable institutions, deserving patronage and encouragement; but when their contracts of indemnity prove worthless, for unsubstantial reasons, to those who are in distress and poverty from the waste of fire, against which their prudence sought to provide, it derogates from the efficacy of the policies and the confidence of the public in fire insurance.
For these reasons, we are clearly of opinion to affirm the decree.