42 Mo. 38 | Mo. | 1867
delivered the opinion of the court.
This was an action by plaintiffs on an application and policy of insurance issued by defendants to one A. M. Waterman, dated February 9th, 1860, on a building used for storage in Havana, Elinois—loss, if any, made payable to Thomas Ryan’s trustees. From the record the facts appear to be that Waterman made application to the secretary of the insurance company, on the 9th of February, 1860, to have the property insured for the sum of $3,000. The application was accepted by the secretary, and the terms agreed upon, and the policy was to take effect from noon of that day; the policy was made out immediately thereafter and signed, and both the application and policy were permitted to remain in the hands of the defendants.
On the 14th of March, 1860, the building insured was consumed by fire, and after intelligence of that fact was communicated to Waterman he went to the office of the defendants, paid the premium, and obtained the policy. He did not disclose the fact of the building being burned up, when he got the policy, and the insurance company was ignorant of the fact when the same was delivered. As soon as knowledge of the burning came to the possession of the company, it refused to pay the loss and notified the plaintiffs accordingly.
The charter and by-laws of the company, which are in evidence, and which are attached as among the conditions of the policy,
It is not necessary to notice the conflict in the testimony of Waterman and Salisbury, the secretary of the company, as to the alleged declarations made by the latter, that when the application was filed and the rate assented to by both parties the transaction was completo, and that Waterman was insured from that day; that there was nothing further to be done. This was a question of fact for the finding of a jury; but from the view the court seems to have taken of the case, it did not enter into its decisions. But there can be no doubt of one thing—that when the company on the same day proceeded to make out and sign the policy, it ratified the application, and its consent was complete. 'The acceptance of a proposal to insure for the premium offered is the completion of the negotiation.
On the acceptance of the terms proposed, the aggregatio mentiurn takes place; the minds of both parties have met on the subject in the manner contemplated at the time of entering into the negotiation, and the contract becomes binding on each—Tayloe v. The Merchants’ F. Ins. Co., 9 How. (U. S.) 390; Hollock v. Com. Ins. Co., 2 Dutch. 268; 3 Dutch. 645.
It is laid down by Angelí that, “when the negotiation for insurance is so far completed that nothing remains to be done but to deliver the policy, corresponding with the terms and date of
But one of the conditions annexed to the policy declared, as before stated, that all claims should be forfeited under it if suit was not brought to the next term of the court in St. Louis county, unless such court should be held within sixty days after the refusal of the party to pay, and then to the next court thereafter. It is agreed by the parties that the first term of the court before which the case might have been adjudicated was held more than sixty days after the defendants gave notice to the plaintiffs of refusal to pay the demand, and that no suit was brought. Conditions of this kind have been frequently introduced by insurance companies into their policies, and have been almost universally sustained. There are many good reasons, in cases of insurance against fire, why the insurers should introduce such conditions in their policies. The object is merely to compel a speedy determination of the controversy while the proofs and witnesses are accessible and all the matters pertaining to the contest are fresh in the recollection of the parties. They work no injury to the claimants, and may be of great benefit to the insurers. Moreover, the contract of insurance is a voluntary contract, and the
The suit can only be brought on the contract as contained in the policy; and one of the conditions of the policy agreed upon voluntarily between the parties operates as a limitation and precludes the plaintiffs from maintaining their action.
Judgment affirmed.