69 Wis. 564 | Wis. | 1887
This suit was instituted by the respondent company to recover $5,000 insurance, by virtue of a contract of insurance between the parties, made on the 25th day of August, 1886, on account of loss by fire occurring on the 10th day of September, 1886. The pleadings are such that only one single issue was presented, and that was whether there was any contract of insurance between the parties, or whether the facts proved constituted a contract of insurance. It was stipulated by appellant’s counsel that the circuit court in which the action was tried might direct a verdict for either party, as it might be advised from the
It is substantially stated in the complaint that about the 25th day of August, 1886, the respondent game its note to the appellant for $1,000, payable in installments at such times as the appellant might order or assess, with a blank application annexed thereto, duly signed by the respondent; and that the same was accepted by the agent of the appellant with the understanding and agreement that the same would effect a contract of insurance, and that such agent should fill out, or cause to be filled out, the blanks in said application and note, in accordance with the facts relating to the ownership of the property to be insured, with a description of the risJc, of which a printed form, issued by the respondent for such purposes, was then and there exhibited to the appellant’s said agent; and that thereupon a written policy of insurance for such time and for such terms, in accordance with such agreement, should be made by said appellant, and fortJkoith delivered to the said respondent. It is further stated in the complaint that said note and application were bjr said agent forwarded to, and are in the possession of, said appellant, and said agreement was duly reported to said appellant, and said appellant duly accepted
It is very clear that these facts make a complete, subsisting, and valid contract of insurance, without the written policy that the appellant company so neglected to send or deliver to the respondent. (1) It is alleged that the appellant gave its note of $1,000 for such insurance; (2) that there was an understanding and agreement, upon the acceptance of said note and application b^y the appellant, that the same would effect a contract of insurance, and that the agent should fill out the blanks therein as to date; (3) that said agent should fill out said application with a description of the risk, of which the printed form was then and there exhibited to said ■agent; and (4) that thereupon a written ■ policy of insurance, for such time and terms, should be made out and delivered forthwith to the respondent; (5) that the appellant neglected, and still neglects,to do these things; and (6) that the appellant duly accepted of said risk, and notified the respondent thereof. These allegations are necessary and vital to make the contract of insurance perfect and complete.
These important allegations were virtually denied in the answer, and it is substantially alleged that the note was in blank as to date; and the application was in blank as to date, and the description of the property to be insured, contained in a form to be thereafter made and furnished to the appellant by the respondent; and that such form was never furnished to the appellant until after the loss by fire had occurred.
In this connection it is proper to say that it is claimed on beh If of the appellant that, admitting the facts stated in
There is very .little substantial difference between the testimony of Mattoon, the president of the respondent company, who made the blank application and note, and of Mather, the agent of the appellant company, who received and transmitted the same to said company. Wherein there is any disagreement will be observed in passing. The facts appear to be as follows:
The applications for insurance, in both cases, were made at the same time. In the case of the Halstead & Whiffin Manufacturing Company, the application and note were filled out and signed at the time. The witness Mattoon testified that “he told the agent that he wanted the $5,000 to cover that risk [the factory and contents], but that he did not know which he would place it all on,— machinery, building, or stock,— but they were just taking an inventory.” The treasurer of the company, Pantzer, handed the agent a printed “form” that had been used in other cases, containing buildings and factpry, the size and location thereof, the amount of machinery, building, and stock to be insured. The object of awaiting such inventory appears to have been to make out a specific “form” similar to that exhibited, containing a description of the building, and the particular contents thereof, classified in certain amounts to make up the $5,000. This was to be the description of the property to be filled in the written application, after such inventory had been made, and such form furnished. It seems, also, that this particular building, and the contents thereof, had already been insured in other companies to the amount of over $60,000, and so classified. In explanation
The agent, Mather, who was called as a witness for the respondent, testified that he called at Mattoon’s office, and applied for some insurance, as he said he would give him some; that Mattoon replied that they were not prepared to fix it then, as they were taking stock; and they showed him a form similar to that exhibited to witness, and he understood that they were getting up some new ones, and as soon as they got some out they would send them to the company. The witness then proposed that they would make out a blank application then, leaving the date blank, fill the note out, and leave the date blank, and when they got their forms ready they would send them to the company, and that they could then make out a policy, and date it, and fill in the date of the note and application to corre
On the 9th day of September, the day before the fire, the secretary of the appellant company wrote to the respondent to send on the “ forms ” to be inserted in the policy, and that the policy would be sent by return mail, and yet none were furnished until three days after the fire.
This is all the material evidence in the case. The circuit court directed a verdict for the plaintiff for $5,000; less, as is supposed, the $200, the first instalment of the note and first year’s premium.
It seems to us that these facts, viewed in the most favorable light for the respondent, fall far short of making a contract of insurance. (1) No policy of insurance was ever issued, nor could it be issued, by reason of a want of description of the property to be insured; and neither the note nor application was ever completed, and could not be, for the same reason. (2) Neither party could have understood that the contract was completed and valid on the 25th day of August, 1886, or the note would have been dated on that day, as well as the application, and everything done, except the specific description of the property, which was not deemed material, and left to be inserted by the respondent in the application and policy, at any time before or after the fire, as a matter of mere form; or why was not the policy issued on the “ factory and contents,” and sent to the respondent to insert a special description of the property insured, at its leisure ? (4) The respondent was never bound by its note or application, or by any of the conditions of the policy, before the fire or since, and, of course, neither was the appellant bound by any pretended agreement on its part. (4) Both parties saw fit
By the simple elements or elementary principles which constitute a contract, here was no contract. (1) Important and material things were left to be done. (2) The minds of the parties had never met upon the subject-matter of the contract, or property to be insured. (3) There was no mutuality or consideration in the unfinished state of the negotiation, and no promise or undertaking on the part of the appellant company to insure any certain property. (4) There must be subject-matter to which the policy could attach. (5) The amount of indemnity must be definitely fixed. (6) The duration of the risk must be definitely fixed,
But this transaction is so wanting in all the elements of a perfect contract, it would seem to be supererogation to cite further authorities. Among other numerous authorities cited by the learned counsel of the respondent to support this contract, there are none applicable to such a case. Here, everything was left Manic and unperfected, to await the apportionment to be made by the respondent, so as to fix the date, and consequently the duration, of the risk, and the lia
There was something said about the policy covering the “ factoiy and contents,” but the appellant company never knew or heard of any such thing; and the application made out by the respondent, to be forwarded by the agent to the company, was a blank as to any and all property to be insured, and remained so until after the fire, and the company never knew what property the respondent wished to have insured.
It is too clear for further consideration that there was no contract, and we think the circuit court erred in the law in finding from these facts that there was.
By the Court.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.