Gardiner v. Piscataquis Mut. Fire Ins.

38 Me. 439 | Me. | 1854

Hathaway, J.

— The case is on facts agreed, by which it appears that, November 15, 1848, the plaintiff procured the defendants’ insurance upon his store situated in Dover. By the fourteenth article of the defendants’ by-laws, which are made a part of the policy, upon which the action was brought, it is provided, that “ it shall be the duty of the insured to give notice to the secretary of the corporation, of such material and manifest increase of the risk, as may have happened, without his agency or consent, after the reception of his policy, whereupon the officers of the company may agree with the insured on such increase of premium as the said officers may deem sufficient to cover said increased risk. •, or they may withdraw the insurance altogether, should they deem such increased risk too great to be taken according to the rules and regulations of the company; and in case the insured shall neglect to give notice as aforesaid, his policy, from that time shall be void.”

The case states, that, in the spring of 1849, one Nathaniel Dexter, jr., erected, on his land, a small blacksmith’s shop, within ten or twelve feet of the southerly side of the store, and used it as such about one third of the time till the store was burned. “ The Court are to draw such inferences as a jury might.” We can have no doubt that the erection and use of the blacksmith’s shop was “a material and manifest increase of the risk,” which, by the express provisions of the contract, between the parties, rendered the policy void, unless the notice were given as stipulated. The facts agreed do not show that such notice was given; and when a case is presented, to the Court, for decision upon an agreed statement, facts, which might be pertinent to the Issue, and which do not appear in the case, are presumed not to exist.

That the store was not burned, by reason of the erection, and use, of the shop, can make no difference. The plaintiff had the right to enter into such contract if he deemed it proper, and although it may operate severely upon him, yet, it is not competent for the Court, to relieve him from the legitimate consequences of his own voluntary contract. Merriam v. Middlesex M. Ins. Co., 21 Pick, 162; Carpenter v. Providence Washington Ins. Co., 16 Peters, 495.

The defendants made an assessment upon the plaintiff, u under, and by virtue of said policy,” for losses which occurred October 16th and 21st, 1850, which were paid by the plaintiff in June, 1851; and the plaintiff argues, that, by making and collecting such assessments, the defendants are estopped from treating the policy as void. But the plaintiff cannot recover without a compliance with the conditions of his policy. Leadbetter v. Etna Ins. Co., 13 Maine, 265. On the erection and use of the shop,no notice having been given, as stipulated in such case, his policy became void. And “a confirmation doth not strengthen a void, estate.” Inst. 295, B. When a lease is ipso facto void, by the condition, no acceptance of rent afterwards, can make it to have continuance. Finch v. Throckmorton, Cro. Eliz. 221. The making of such assessments by the defendants, for subsequent losses, would not revive the policy, nor was it inconsistent with the legal right of the company to treat it as void. Neely v. Onondaga M. Ins. Co., 1 Hill, 49; Smith v. M. F. Ins. Co., 3 Hill, 508; Philbrook v. N. E. M. F. Ins. Co. 37 Maine, 137.

Upon the facts agreed, the action cannot be maintained, •and a nonsuit must be entered.

Shepley, C. J., and Tenney, Howard and Appleton, J. J., concurred.