177 Pa. 566 | Pa. | 1896
Opinion by
There is but one question in this case that needs consideration. It is the question of estoppel. Can the defendant be permitted to set up the defense it has made against the plaintiff’s claim? We are clearly of opinion it cannot. There is no controversy as to the facts. The learned court below granted a compulsory nonsuit at the end of the plaintiff’s testimony upon a theory to which we cannot possibly assent. The question of waiver is of no consequence in view of the facts given in evidence by the plaintiff. The legal plaintiff, Hiram Highlands, held a fire insurance policy issued by the defendant, covering a barn and its contents and a dwelling house and furniture. This policy was executed on May 26,1891, to continue for five years. On August 2, 1892, Mr. Highlands made an assignment for the benefit of creditors to Charles B. Baker, who accepted and executed the trust. Mr. Baker testified on the trial that within a few days after the assignment was made, he went to the agent of the defendant, Meredith, for the purpose of having the policy transferred to him as assignee, but was assured by the agent that the policy was good as it was, and did not require any transfer until after deeds were made to the purchaser of the property from the assignee. Later on, at another conversation on the same subject, he said the agent told him “ there was no occasion to have that policy transferred until after the deed was made; otherwise he said, if it was transferred before the deed was made, it would be just about in the same shape as it was before; that it would leave it stand in my hands.” In consequence of this he retained the policy, and the transfer was not made. During the following year, 1893, the same agent of the defendant, Meredith, made a demand upon the assignee for an assessment for a loss which had occurred after the assignment. The witness took the advice of his counsel as to whether he should pay the assessment, and upon being advised to make the payment he did so, and took a company
The assignee having been assured by the defendant through its authorized agent that the policy was good as it was until a deed was made to the purchaser, and the defendant having claimed an assessment for a loss which occurred not only after the assignment, but also after the sale was made by the assignee, and that assessment having been paid, the case comes clearly within the operation of at least three of our decisions, the last of which was made only one year ago. These cases are Mentz v. Lancaster Fire Ins. Co., 79 Pa. 475; Wachter v. Phœnix Assurance Co., 132 Pa. 428, and Light v. Mutual Fire Ins. Co., 169 Pa. 310. In all'of these we held the company estopped by declarations of their agent of a character precisely similar to those made in this case. In the Mentz case, because the agent told the policy holder that the proper indorsement had been made on the policy, we held the company estopped by his declaration. The Wachter case was almost precisely similar to this, and the company was estopped, because the agent assured the policy holder that the policy was properly transferred to the mortgagee, and that nothing more need be done. In the Light case we expressly held that there was no insurable interest in the policy holder after the sale of the property, but we refused to permit that defense to be made. There as here, the policyholder informed the agent of the sale, and wanted to know what was to be done in regard to the policy. The agent told him he had better hold the policy and have the assessments sent, to him, which was done, and they were paid by the insured, who delivered the deed to the purchaser without transferring the
Judgment reversed and new venire awarded.