7 F. 649 | U.S. Circuit Court for the District of Southern New York | 1881
So far as the defendant’s motion for a now trial rests upon the ground that the verdict for the plaintiff was contrary to the evidence, it may be briefly disposed of. There was a decided preponderance of testimony in favor of the defendant’s theory that the value of the property insured was considerably less than was represented by the plaintiff in his application for insurance and in his proofs of loss, but there was also direct aud positive testimony to sustain the correctness of the plaintiff’s estimate of value, the
It is insisted that the plaintiff cannot escape the effect of an overvaluation upon the theory that it was an unintentional one. While the policy provided that an overvaluation would render the policy void, the representation of value was in a written application, by the terms of which the assured only assumed to state the facts in regard “to the condition, situation, and value of the property to be insured, so far as the same are known to the applicant.” The plaintiff, therefore, only assumed to give the defendant the benefit of his own knowledge; and, although he may have been mistaken, there was no breach of the representation unless the overvaluation was knowingly made. Good faith-was all that was required on the part of the assured. The ease of Franklin Fire Ins. Co. v. Vaughan, 92 U. S. 516, is the only authority which it is necessary to cite as conclusive upon this point. In the case of the National Bank v. Ins. Co. 95 U. S. 673, the policy, as in the present case, made the application a part of the contract, and provided that an erroneous representation should render the policy void; but it was held, inasmuch as the representation only assumed to make a true exposition of the facts, so far as known to the applicant, that there was no breach unless the estimates of the insured were intentionally excessive.
It is also insisted for the defendant that the court erred upon the trial in excluding evidence offered for the purpose of showing that the insured had a defective title to the real
The defendant’s offer of proof was, therefore, nothing more than a proposition to show that the plaintiff, although lie had a title to the mill property which apparently vested in him the sole, unconditional, and entire ownership of the property, had a defective title. The condition of the policy refers to the extent of the insurable interest of the plaintiff, and not to the validity of his title. So long as the plaintiff, under claim of right, had the exclusive use and enjoyment of the insured property, without any assertion of an adverse right or interest in it by any other person, he was the owner of
It was not suggested that the plaintiff had any doubt of the validity of his title; and, finally, it may be said of the defence, as was said in Stevenson v. London & Lancashire Fire Ins. Co. 26 U. C. T. Rep. 148, where it appeared the buildings insured were outside the boundaries of the deed of the assured, owing to a mistake in a survey:
“ It is, we believe, a novel experiment; we do not think it a creditable one; and, in the absence of direct binding authority, it has no intrinsic merit to entitle it to succeed. ”
It will not be profitable to discuss the several further points made by the defendant as reasons why a new trial should be granted. They have been fully considered, but are deemed not to be well taken. In regard to the defects in the proofs of loss, by reason of the absence of the builder’s certificate and that of the nearest notary or magistrate, it is sufficient to say there was ample evidence to authorize .the jury to find that the defendant, through its agents, had repudiated all liability under the policy upon other grounds. The agents may not have known that the notary whose certificate accompanied the proofs of loss was not the nearest notary, but it was as much their duty to ascertain if the proofs complied with the conditions of the policy as it was the plaintiff’s. Instead of making objection, they treated the proofs of loss as satisfactory in all respects.
The motion is denied.