Hough v. City Fire Insurance, 29 Conn. 10

Hough v. City Fire Insurance

29 Conn. 10 | Conn. | 1860

Sanford, J.

That the evidence introduced by the plaintiff to prove his ownership of the property destroyed, conduced to prove that he had an equitable title to, and consequently an insurable interest in it, is undeniable. It went to show that, before tlie making of the application, he had contracted with Eliakim Hough for the purchase of the property at a stipulated price, had paid a considerable portion of the purchase money in the way agreed upon, had taken possession as purchaser, and held as owner of the property, and had expended a large amount in making permanent and valuable improvements thereon, and that, at the time of the contract, Eliakim Hough was the undisputed owner of the property in fee simple, under an absolute deed from Alvah Hough the former proprietor. So that if the fact which that evidence conduced to prove was true, the plaintiff had a vested interest in the property, which a court of equity would undoubtedly have recognized and protected.

But it is said that the question was not whether the plaintiff had an insurable interest in the property, but whether he had the interest described in his application. The defendants,, contend that by the terms “ his frame dwelling house,” &c., the plaintiff represented the property to be his absolute estate in fee simple, while the evidence went to show that his estate was less than a fee simple, and was not an absolute interest within the moaning of the third article of the “ conditions of insurance ” annexed to the policy.

We think the defendants are wrong. An individual may properly regard property as “ his,” and so denominate it, when he has a right to it, and the power by law to enforce and protect that right. And no better criterion of rightful ownership can be produced, than that given to the jury in the judge’s charge. Indeed, both in common parlance and in legal accep*20tation, property is his, who, in case of its destruction, must sustain the loss of it. In the case at bar, the contract between the plaintiff and Eliakim Hough — the one to pay the stipulated price, the other upon such payment to convey the legal title — was, in regard to both of them, subject to no condition and liable to- no contingency. Both parties regarded the property as the plaintiff’s, and treated it accordingly, and we think it was no misdescription of the plaintiff’s interest in it, or misrepresentation regarding it, to call it his.

We think too, that the evidence conduced to prove that the plaintiff’s interest in that property was an absolute interest. That is an absolute interest in property, which is so completely vested in the individual that he can by no contingency be deprived of it without his own consent. And by this contract with Eliakim Hough, and its part performance, the plaintiff had acquired a right to the whole property, of which he could not be deprived without his own consent. So too, he is the owner of such absolute interest, who must necessarily sustain the loss if the property is destroyed. The subject of insurance was an interest, not a title. It is an interest, not a title, of which the conditions of insurance speak. The terms “ interest ” and “ title ” are not synonymous. A mortgagor in possession, and a purchaser holding under a deed defectively executed, have, both of them, absolute, as well as insurable interests in the property, though neither of them has the legal

The decision in the case of Warner v. Middlesex Mutual Assurance Co , 21 Conn., 444, turned upon the peculiar provisions of the defendant’s charter. The defendant was a mutual insurance company, entitled to a lien upon the property insured for future assessments, and was therefore interested in knowing the exact state of the assured’s title. • The assured was a member of the defendant’s corporation, and conclusively presumed to know all the provisions of that charter. The charter in express terms provided that no insurance should be valid, unless the insured “ had a good and perfect unincumbered title at the time of effecting such insurance, or unless the true title of the insured and the incum*21Frances, if any, were fully disclosed and expressed in the proposals for insurance, and were also specified in the policy.” And that charter, by reference to it in the application and the policy, was made part of the contract between the parties. In the case at bar, there is no such provision in the charter or stipulation in the contract, and no obvious reason for requiring from the assured an exact statement of his title, so that there be no fraud, misrepresentation or concealment concerning it, and so that the assured shall in no event be enabled to recover for a loss which has not fallen upon him, and is not his loss in fact.

It seems to have been the leading object of the framers of this third article of the conditions of insurance, to protect the company against the payment of losses to individuals who had not in fact sustained them. Thus, the first clause provides that property held in trust, or on commission, must be insured as such, because, in the one case, the cestui que trust and not the trustee, and, in the other, the consignor and not the factor, would be the real or principal loser by the destruction of the property. So in regard to the holder of property under a lease, or whose interest in the property is contingent, if the property is destroyed the entire loss may fall upon the landlord in the one case, and in the other, instead of falling upon the individual insured, may by the happening of the contingency be cast entirely upon another. The condition in question speaks only of the character of the interest to be insured,not of .its quantity. Absolute is here synonymous with vested, and is used in contradistinction to contingent or conditional.

That the plaintiff had a vested interest in the property, of which he could not be deprived against his will — an interest dependent upon no contingency for its existence or continuance — an absolute interest — and that the property was properly denominated “ his,” the evidence undoubtedly conduced to prove, and was properly received; and the charge of the court on this point was unexceptionable.

2. Pending the decision of the court upon the question already considered, the plaintiff offered evidence that he pro*22cured the insurance of the defendant’s agent, Houghton, and that, during his negotiations with Houghton for such insurance, he fully stated to said Houghton the facts relating to the nature of his title, and that his application for insurance was filled out by said Houghton. The defendants objected to this evi dence, on the ground that such parol statements were merged in the written contract, and on the ground that the plaintiff’s representations regarding his interest in the property should have been made to the company itself or to its officers in writing. Without intending to call in question the rule of law that parol evidence is inadmissible to affect written instruments, we hold that this evidence was properly received. The defendants claimed that the plaintiffs denomination of the property as “ his,” was a misrepresentation which rendered the insurance void, and to meet that claim, it would undoubtedly have been proper for the plaintiff to show, that he made such statements to the defendants themselves, and that the language of the application was their own. To allow the defendants under such circumstances to avoid their contract on account of a mistake into which they themselves had led the plaintiff, would be to allow them to take advantage of their own wrong. So too the evidence was proper as conducing to prove an understanding and agreement between the parties to consider and treat the property as belonging to the plaintiff. In the case of Peck v. New London Mutual Ins. Co., 22 Conn., 575, part of the property insured and destroyed was owned by one of the plaintiffs, and part by the other, in severalty. It was all insured as if the plaintiffs were joint owners of the whole, and in their declaration they alleged they were so. Parol evidence was given that, at the time of procuring the policy, the plaintiffs made to the defendants’ agent a full statement regarding their title, and that said agent filled up and issued the policy in language of his own selection. And this court held that the evidence “ was properly received for the purpose of showing that the parties agreed to treat the property insured as the joint property of the plaintiffs.”

We have already seen that the interest which the 'plaintiff offered to show was an absolute interest, and, consequently, *23that the condition of insurance relied upon as rendering'the policy void had no applicability, and we find no other provision in the contract which requires that a title like the plaintiff’s should be particularly described, or represented to the company in writing, as the defendants claim.

But it is said that the statements were not made to the defendants or their officers, and that the agent to whom they were made had no authority to receive them. Whether Houghton was authorized to receive these statements and charge the defendants with the consequences, was a question of fact in regard to which the written instruments furnished no information. In those instruments the defendants recognize him as their agent, but do not state the limits or extent of his authority. That was left to be inferred from the nature of his agency, the duties incident to agencies of that kind, and the manner in which his duties had been performed in fact, with the express or implied approbation of the defendants — an inference of fact which the jury alone could make — and the question was properly submitted for their consideration.

Lastly: the defendants contend that, by the plaintiff’s answer to the fourth interrogatory in his application, he stipulated that the insured buildings should be occupied by a tenant.

We think the defendants are wrong. The object of the inquiry was to ascertain the kind and character of the business carried on in the buildings, in order to enable the insurer, to calculate the degree of hazard to which those buildings would be exposed. Hence the inquiry “ how ” — that is, in what manner, not by whom — are the several stories occupied. And the first clause of the answer, “ unoccupied,” is directly and completely responsive to the question. Nothing more need have been said, or was said, by way of answer to that interrogatory. But as the plaintiff had already advertised the premises to let, it was natural, if not necessary, that he should notify the defendants of the fact, and accordingly he added “ but to be occupied by a tenant,” intending thereby to reserve to himself the right, not to incur an obligation, to put a tenant into the vacant buildings, And so we think the defendants ought to have under*24stood it. In our judgment therefore, the opinion expressed by the judge upon the trial on this point was right, and might have been given to the jury for their guidance as the true construction of the contract.

But the course actually taken was one of which the defendants have no reason to complain. When no time for the performance of a contract, other than the payment of money, is specified in the contract itself, the law allows a reasonable time for such performance. And what is reasonable time, is generally a question of fact for the determination of the jury. In some cases, indeed, the court can decide, but those are cases in which it can be determined by the simple application of some settled rule or principle of law, to facts proved or admitted on the trial. 1 Stark. Ev., 451-9. Thus, notice of the dishonor of a bill of exchange must be given to the indorser in a reasonable time after such dishonor, but what shall be deemed reasonable time has become a settled rule of law, so that the time and place of protest, the place of the indorser’s residence, the course of the post, &c., being admitted, the court can, by the application of the rule alluded to, decide whether the notice was given in reasonable time or not. But where the law is silent, and does not by the operation of any principle or established rule decide upon the legal quality of the simple facts, it is for the jury to draw the inference of reasonable or unreasonable in point of fact. 1 Stark. Ev., supra. We know of no rule or principle of law by the application of which we can decide the question in the case before us. We think it was properly submitted to the jury. Whether the finding of the jury was right or not, we have not on this motion the means of knowing, and can not decide.

Upon all of the points made we think the rulings of the superior court were correct, and advise that the motion for a new trial be denied.

In this opinion the other judges concurred.

New trial not advised.