| Iowa | Jun 13, 1862
The defendants claim that they are not liable upon their contract of insurance, for the reason that the assured rented the building for a theatre, and permitted stage scenery to be introduced therein, in direct violation of the conditions of the policy; that by the introduction of “ stage scenery,” the risk became extra-hazardous, the fire facilitated thereby, and that the plaintiff should not recover. The plaintiff denies that there was any condition in the policy that was violated by the acts of the association in permitting such scenery, &c., to be introduced; that if the said policy was forfeited by a violation of its terms, that the defendant waived such forfeiture by recognizing its validity after such forfeiture occurred. It is claimed that the said building was used as a theatre, and stage scenery introduced, with the knowledge and assent of the officers of defendant, and after the building was so used, and with a full knowledge of such fact by the company, certain assessments were made and collected by defendant on the premium note of the assured. There are several assignments of error argued by counsel, that become of little importance from the view- we take of the ease.
The objection to the plaintiff’s right of recovery, for the reason that notice was not forthwith given to defendant of the loss by fire, presents a question not raised in the court below, and cannot now be considered by us.
The instruction of the court as to the effect of the answer of the garnishee, that they were to give to it the same consideration as they should to the testimony of a disinterested witness, except in so far as such answer was based upon information and belief, was not such an error as to prejudice the defendant. Nor do we think the court erred in its instructions given, which directed the jury that the assessment and collection of a portion of the premium note, after the defendants were advised of a violation of the policy, was a waiver of the forfeiture. The correctness of this
The controlling question in the case is, whether the defendant ever had notice of the violation of the terms of the policy prior to the fire, or when the assessments were made, by which it is claimed the forfeiture was waived.
The jury must have found that the defendant waived the forfeiture, as we think it is clearly established by the evP dence that the introduction of “ stage scenery ” into said building was in violation of the conditions of the policy. Nor do we see how the jury could have found otherwise than they did, under the instructions of the court. The evidence shows that the President of the Insurance Company was present in the building when stage scenery was there used, that the opening of the theatre was announced by the public papers, and large notices posted up at the post-office, and at the public places in the city, that at a meeting of the directors of the Odd Fellows’ Hall Association, part of whom were directors and members of the Insurance Company, the question was canvassed whether a lease to the Dramatic Association, and, as incident thereto, the introduction of “stage scenery,” would be in violation of the terms of their policy of insurance. It is upon this knowledge that the jury must have concluded that the defendant was notified of the violation of the policy. The court refused to instruct the jury “ that mere rumor, or that kind of knowledge which is acquired by an officer of a corporation In his individual capacity, is not sufficient to constitute notice to a corporation.” “ That notice of any fact material in any particular case, must be given by some person having authority to give notice of such fact, to some one having authority to receive notice.” “ That the knowledge that C. H Booth, P. A. Lorimier and F. E. Bissell
We think that the refusal of the court to give these instructions was error.
The knowledge that an officer acquires by rumor, or by •information in his individual capacity, should not be considered as constructive notice to the company. Such officer may receive such information, without knowing how far it affects the rights of the company he represents. The policy, with its conditions, is not under his control, or in his possession, nor can he be required to retain in his mind the conditions of the insurance in each policy, so that, when he walks the street, stops at a business house, or attends a theatre or place of public worship, he is to take notice of the acts of persons insured, and report to the board of directors all he has seen or heard, so that the company may be advised whether their outstanding policies are being violated or not.
In the case of the Fulton Bank v. N. Y. Sharon Canal Co., 4 Paige Ch., 127" court="None" date_filed="1833-07-16" href="https://app.midpage.ai/document/fulton-bank-v-new-york--sharon-canal-co-5548035?utm_source=webapp" opinion_id="5548035">4 Paige, 127, it was held “ that the directors or trustees of a corporation when assembled as a board are the general agents of the corporation, and notice to them, when so assembled, is notice to their successors, and to the corporation. But notice to an individual director, who has no duty to perform in relation to the subject matter of such notice, is not-a good constructive notice to the corporation.”
In the case of the National Bank v. Norton et al., Cowen, J., after citing the ruling of different courts upon this' subject, says: “ These cases show what is indeed quite plain, that the acts of a director, or other officer of a corporation, unless official or in respect to his agency, are no more operative as against the .institution than the acts of any
Reversed.