102 Wis. 394 | Wis. | 1899
If the defendant, in case of fire, could have recovered upon the policy of insurance, notwithstanding the use of benzine upon the premises and notwithstanding the condition of the title, then the defense to the note must fail.
As to the use of benzine upon the premises, there can be little doubt that the policy was not vitiated thereby. The property was a large' furniture factory, known to be such, insured as such, and expected to be used as such. The evidence shows that there were a few barrels of benzine kept on the premises at all times; that it was used in finishing the furniture manufactured on the premises. There is nothing to show that any more was kept than was reasonably necessary to operate properly a factory of this capacity. In the case of Faust v. Am. F. Ins. Co. 91 Wis. 158, it was held that where a contract of insurance, by the written portion, covers property to be used in conducting a particular business, the keeping of an article necessarily used in such business will not avoid the policy, even though expressly prohibited in the printed conditions of the policy. That was a case where benzine
In the present case the burden was on the defendant to show that a condition of things existed which avoided the policy. This burden was not discharged by showing that benzine was used on the premises in manufacturing furniture in the usual and ordinary way, because the policy contemplated the manufacture of furniture and the use of such materials as are customarily used for such purpose; but it must further be shown that it was kept in unnecessarily large quantities, or for purposes not contemplated by the policy. Neither of these facts appears in the present case, and hence no breach of the condition was shown.
The defendant’s title was an estate in fee upon condition subsequent. It was in possession with no condition broken, and if it performed the prescribed conditions as to operation of the factory for five years, or in lieu thereof paid the grantor $10,000 in money, then its conditional fee became a fee simple; but, if it failed in both particulars, the title reverted to the grantor. Furthermore, an absolute deed in fee simple of the property, running to the defendant, was held by the Chippewa Valley Bank, in escrow, under a written, sealed agreement, by the terms of which the same was to be delivered to the defendant upon performance of the conditions named in the first deed. The question is whether this constitutes an “unconditional and sole ownership,” within the meaning of the policy. In Johannes v. Standard Fire Office, 70 Wis. 196, a person in possession of land under a contract of purchase, who was not in default, but had only paid part of the purchase money, was held to be the' sole, equitable owner; and it was held that his title was sole and unconditional for all purposes of insurance. If such ownership satisfies the condition as to unconditional and sole ownership, it is difficult to see why the defendant’s title here did not satisfy the condition. In addition to its deed
These are the only contentions made by the answer which are insisted on in this court; and it follows that judgment' should have been rendered for the plaintiff upon the verdict. This case presented no material disputed questions of fact, but only questions of law; hence it was a proper case for the rendition of a verdict subject to the opinion of the court. Stats. 1898, sec. 2857. In such a case the only question is which party is entitled to final judgment upon the uncontroverted facts, without regard to the verdict. Durant v. Abendroth, 69 N. Y. 148. The court below should have directed judgment for the plaintiff.
By the Cowrt.— Judgment reversed, and action remanded with directions to render judgment for the plaintiff for the amount demanded in the complaint.