62 N.H. 240 | N.H. | 1882
The defendants are liable only in accordance with the terms and stipulations expressed in their contract as the conditions of their liability. The contract is in writing, and is contained in the policy of insurance. In consideration of $8.50 paid by the plaintiff, the defendants covenanted to insure his property against loss or damage by fire for the term of three years commencing August 15, 1876. The policy contained this condition: "If the above mentioned premises shall be occupied or used so as to increase the risk, or become vacant and unoccupied for a period of more than ten days, or the risk be increased by any means whatever within the control of the assured, without the assent of this company indorsed hereon, . . . then, and in every such case, this policy shall be void." The premises remained unoccupied from August 24 until December 11, 1876, and on the 18th or 19th of that month were destroyed by fire. The contract was, not that the policy should be void in case of loss or damage by fire during the period of unoccupancy, but that vacancy and unoccupancy *242
should terminate the policy. There is no occasion to inquire what distinction there may be between a vacant and an unoccupied building (Herrman v. Merchants' Ins. Co.,
There was no waiver by the defendants of the condition, nor any assent to the changed condition of the premises insured, for they had no notice or knowledge that the buildings were unoccupied until the plaintiff furnished his proofs of loss. A waiver, to be effectual, must be intentional. The premises were left unoccupied more than ten days; and if the non-occupation had continued to the time of the fire, the plaintiff could not recover. Fabyan v. Ins. Co.,
It is contended by the plaintiff, upon the authority of State v. Richmond,
The duty of obtaining the consent of the defendants to the changed condition of the buildings rested with the plaintiff. By his neglect to comply with this requirement of the contract, it came to an end by force of its own terms. Girard Ins. Co. v. Hebard, 95 Pa. St. 45. If, when the unoccupancy commenced, he had requested the assent of the defendants, they would have had their option to continue the policy upon payment of such additional premium as the increased risk called for, or to cancel the policy, refunding the unearned premium. Lyman v. Ins. Co., 14 Allen 329. There is no presumption that they would have given their assent to the unoccupancy of the buildings without the payment of a premium commensurate with the additional hazard.
The contract being once terminated, it could not be revived without the consent of both of the contracting parties. It is immaterial, then, whether the loss of the buildings is due to unoccupancy or to some other cause. Mead v. N.W. Ins. Co.,
In Mead v. Ins. Co.,
In Fabyan v. Ins. Co.,
This result is in accordance, also, with that rule of the law of marine insurance which holds that a deviation from the stated voyage against a condition in the policy discharges the insurer, though the loss does not happen during the deviation, nor the risk be increased thereby. Kettell v. Wiggin,
Worthington v. Bearse, 12 Allen 382, is not in conflict with the authorities that alienation of title avoids the policy. In that case the mortgagor (plaintiff) of a vessel insured his interest (seven eighths) for one year, payable to the mortgagee. The mortgagor then sold thirteen sixteenths of the vessel to L., who agreed to pay the plaintiff's debt to the mortgagee, but failing to do it, reconveyed the thirteen sixteenths to the plaintiff during the year. It was held that the contract of sale was never executed, but that if it had been the plaintiff's right to recover was only suspended during the time the title to the vessel was vested in the vendee, — there being no stipulation in the policy that the insured should not convey or assign his interest in the vessel during the year.
Landers v. Ins. Co.,
In Baldwin v. Ins. Co.,
The decisions in Maine, cited by the plaintiff, are not in point, for c. 34, Laws 1861, Maine, provides that "Any change in the property insured, its use or occupation, or breach of any of the conditions or terms of the contract by the insured, shall not affect the contract unless the risk was thereby materially increased." May Ins. 269; Cannell v. Phoenix Ins. Co.,
The cases cited from Illinois seem to have followed the decision in Ins. Co. v. Wetmore,
In Gans v. Ins Co.,
Lane v. Maine Ins. Co.,
In Obermeyer v. Globe Mut. Ins. Co.,
In Mitchell v. Lycoming Mut. Ins. Co., 51 Pa. St. 402, it was held that a breach of a covenant in a policy not to insure beyond two thirds of the estimated value of the property is a forfeiture of the policy; and that when other policies which are alleged to create the over-insurance are void at the time of the loss, they are no obstacle to a recovery on the policy; but if voidable for some breach of condition for which the insurer might avoid them but which they had waived, the over-insurance exists. See, also, May Ins. (ed. 1873) cc. 16, 17, and 1 Phil. Ins., ss. 734, 975.
The strict and literal meaning of the stipulation that the policy shall be void if the premises remain unoccupied more than ten days is not that the insurance will be suspended merely during non-occupation after the ten days, and will revive when occupation is resumed. In ordinary speech, a void policy is one that does not and will not insure the holder if the insurer seasonably asserts its invalidity. It might be argued that this clause should be so construed as to accomplish no more than the purpose for which it was inserted; that its sole purpose was to protect the insurer against the risk resulting from non-occupation; and that if this risk was terminated by reoccupation, the parties intended the insurance should be suspended only during the existence of the cause of a risk which the company did not assume. On the other hand, it might be argued that such an intention would have been manifested by words specially and expressly providing for a suspension and resumption of the insurance, and would not have been left to be inferred from the general agreement that the policy should be void; that a final termination of the insurance at the end of ten days of non-occupation is plainly expressed by the provision that the policy shall then be void; and that the parties would not think it necessary to go further, and provide that the void policy should not become valid on reoccupation.
Without determining the true construction, or what the result would be if there were no authority in this state, we are inclined to follow the decision in Fabyan v. Insurance Company,
Verdict set aside.
BLODGETT and CARPENTER, JJ., did not sit: STANLEY, J. dissented: the others concurred. *247