Graham v. Mercantile Town Mutual Insurance

110 Mo. App. 95 | Mo. Ct. App. | 1904

BROADDUS, J.

— This is a suit on a fire insurance policy issued June 15,1900, by defendant — the Mercantile Town Mutual Insurance Company — to plaintiff insuring his house and .contents against loss by fire and lightning.. The "property was destroyed by fire and the defendant refusing to pay the loss this suit was instituted. The case was tried before a jury which, at the conclusion of all the evidence, was instructed by tbe court to find a verdict for tbe defendant. In obedience to tbe instruction a verdict was so rendered and judgment given accordingly, from which plaintiff appealed.

The agreed premium stated in tbe policy was $30.. One, Fred C. Comer, was tbe soliciting agent who took tbe insurance. Plaintiff’s evidence tended to show that be notified said Comer before tbe policy was issued that be would not insure unless be could pay tbe entire premium in cash. Plaintiff paid $17 in cash, two dollars of which witness Comer stated was tbe fee for issuing tbe policy. At tbe time tbe policy was^ issued plaintiff signed a written application for insurance which 'by tbe terms of tbe policy was made a part thereof. Tbe charter and by-laws of tbe company were also made a part of said policy. Tbe plaintiff signed a note for $15 for one-balf of said premium.

By tbe terms of bis policy tbe plaintiff became a member of tbe defendant’s association. Article 10 of tbe association provides that tbe board of directors of tbe association shall have the power to make an assessment as often as they deem necessary upon premium notes given by members of tbe company in order to settle losses and pay expenses: Tbe company made an assessment under said article and gave notice to plaintiff of tbe amount assessed against him, which be failed and neglected to pay. In bis reply to defendant’s answer setting out plaintiff’s failure to pay said assessment be denied tbe execution of such note and alleged that it was a forgery or that if such note existed it was procured by fraud and without bis knowledge and consent.

In bis testimony plaintiff admitted signing tbe paper but stated that it was obtained by trick: that is, by a certain manner in which it was folded when be signed it, which be illustrated to tbe jury. Tbe policy, tbe application and tbe articles and by-laws of defendant were introduced in evidence. Plaintiff’s abstract contains only a part of the policy and application and only section ten of the by-laws and articles of defendant’s association. It nowhere appears in the parts named that one-half the premiums on policies should be paid in notes of the assured, although said Article 10 confers on defendant’s board of directors the power to assess them to pay losses and expenses.

The defendant contends that as the merits of the whole case are involved, that the judgment should be affirmed because of the failure of plaintiff to include all the evidence in his abstract. We think, however, enough is shown to enable the court to decide the case upon the issues involved. The defendant’s attorneys have declined to go into the merits of the controversy and are standing on the mere technicality of the failure of plaintiff to furnish a complete abstract of the evidence. Consequently, we can not avail ourselves of their theory of the case.

Said section ten of defendant’s articles of association by implication authorizes defendant to accept one-half of the premium on policies in notes of the assured. But there is nothing in said section to prevent it from taking the entire premiums in cash. It was therefore competent for plaintiff to contract for a cash premium, which would have been equally as available to defendant as payment by cash and by note in the manner stated. He says that he agreed with the agent to pay a cash premium — that he told him beforehand that he would not insure in any other way. But whatever he and the agent might have said or agreed to was before the delivery of the policy which contains his contract with defendant. All such agreements, if they existed, were merged in the policy. Plaintiff accepted the policy which informed him that the premium thereon was thirty dollars. He knew this, or at least the law will hold him to such knowledge. And he admits he signed the paper purporting to be a note for $15 for one-half of the premium. But he says that it was obtained by fraud or trick But he does not state that any representations were made to him by the agent of what the writing contained. He says that he did not know he was signing a note. He could read but he did not choose to do so. He states that he was deceived by the way the paper was folded. The only attempt to show fraud on the part of the agent in procuring the note was the manner in which he folded the paper when he presented it to plaintiff to sign. This unaccompanied with some deceit calculated to mislead would not amount to a fraud. “When one without fraud practiced upon him signs a contract he is conclusively presumed to know its contents and terms and his failure to read before signing does not alter the rule.” [Johnston v. Life Ins. Co., 93 Mo. App. 580, and authorities cited.]

One of plaintiff’s contentions is that the agent had the power to modify or waive the provisions of the contract of insurance, citing Springfield Laundry Co. v. Traders’ Ins. Co., 151 Mo. 90; Ross-Langford v. Ins. Co., 97 Mo. App. 79. These cases are not in point. They refer' to provisions for the non-performance of which upon the part of the assured renders the contract of insurance void. They do not go to the extent we are asked to go to here, that an agent may waive that which goes to the validity of the contract — that is, the consideration.

The argument is that it was within the powers of the agent to waive a payment of a part of the premium. This, no agent would have the right to do, however comprehensive his powers might be, unless specially conferred by the corporation itself. If such a power existed it was lodged in the directors of the company. The exercise of such a power would be to change the rate of insurance — and as all the assured were members of and constituted the association, such could be accomplished by the corporation alone, as such, and not by its executive officers.

Plaintiff having failed after due notice to pay the assessment on his note, as provided by his contract, his policy stood suspended at the time of his loss; therefore he was not entitled to recover. Affirmed.

All concur.