37 Minn. 300 | Minn. | 1887
Our decision of this appeal will be based principally upon the construction given to the contract of insurance as
About a year and a half after the insurance, the building (which was until then about 53 feet wide and 200 feet long) was extended •on one side so as to make it 12 feet wider through its whole length of 200 feet. The jury found specifically that this enlargement did not increase the risk. If the provision first above recited had stood alone, there would have been no doubt that a material enlargement of the building, without the consent of the insurer, would have constituted a violation of the condition of the policy, even though the risk might not have been in fact thereby increased. It was competent for the parties by their contract to thus leave it in the power of the insurers to determine whether in their judgment the risk would be increased, and whether or not they would continue the insurance, if the situation or condition of the property should be changed by any material addition or enlargement. The contract explicitly reserving this right to the insurers to exercise their own judgment in the premises, they are not to be deprived of it, and held bound, notwithstanding the disregard by the insured of the conditions of the contract, merely because in the judgment of a jury the change did not in fact increase the risk. The only doubt as to the construction of the contract grows out of the provisions in the by-law, that if a building insured shall be “altered, enlarged, or appropriated to any other purposes than those mentioned, or the risk be otherwise increased,” etc. But in view of the distinct, unqualified, and apparently complete provision first recited, we are of opinion that the words in the by-law, and which we have put in italics,
That the enlargement was a material one, such as would come within this stipulation of the contract, we do not doubt. Under the -construction which we have put upon the policy, the fact that the risk was not increased, as the jury considered, does not do away with the invalidating effect of the disregard by the assured of this condition. There was, however, written in the policy a permission “to make necessary alterations and repairs,” and it is claimed that this was a necessary alteration. While the written provision of a contract .should prevail over one which is inconsistent wdth it, and which is part of a printed form, adopted for general use, yet only so far as it is apparent that the parties intended to modify or disregarded the printed stipulations will the latter give way. We are unable to construe this writing as wholly inconsistent with, or as intended to wholly ■do away with, the requirement expressed in the printed condition, that if the building be “altered, added to, or enlarged,” notice must be given and consent indorsed. It is operative to qualify the provision respecting alterations merely, without necessarily affecting that respecting additions or enlargements. Necessary alterations and repairs upon the existing structure, whatever such “alterations” might properly include, were authorized; but not a material enlargement ■of the whole building, such as was made in this ease.
There was evidence directed to showing that this enlargement was contemplated by the assured when the contract was made, and that the agent was advised of this at the time. The building was in pro•cess of construction when the insurance was effected, and the con
For the reasons above expressed, we think that the verdict cannot stand, and there must be a new trial.
Some other questions are involved in the appeal which it is expedient that we should pass upon, as they may be expected to arise again if there should be a retrial of the cause. Without referring; particularly to the evidence of the agency of Smith & Spencer, we-will say that the evidence is deemed to have been sufficient to justify the conclusion that, for the purpose of effecting this insurance, those-persons were the agents of the defendant.
Because parol evidence was received, and the question left to the-jury as to whether the use to which the building was put was such as the parties had contemplated, the defendant contends that the rule-was violated which requires that the written contract only shall determine the intention of the parties. Attention is particularly called to the term “saw-mill building,” by which the building insured is designated in the policy; also to the provision above recited from the-by-law avoiding the policy if the property shall be “appropriated to-any other purposes than those mentioned.” The building was used at the time of the fire for the sawing of lumber from logs, and also-as a box factory, having in it proper machinery for those purposes, and some dry-kilns for drying lumber by steam. The principle relied upon by the appellant is not applicable. The contract is to be construed in the light of the circumstances under which it was made. • The insurance to run five years was effected while the building was ■ known to be in the process of construction and equipment with machinery. The plaintiff had another building near this, which was-called'the “Factory Building.” The policy insured the plaintiff as-
For the reason stated in the first part of this opinion the order refusing a new trial is reversed.
Berry, J., because of ilmess, took no part in this case.