120 Pa. 504 | Pa. | 1888
Opinion,
This was an action of assumpsit upon a policy of insurance. The policy contained the following warranty:
“ The assured by the acceptance of this policy hereby warrants that any application, survey, plan, statement, or description connected with procuring this insurance, or contained in or referred to in this policy, is true and shall be a part of this policy; that the assured has not overvalued the property herein described, nor omitted to state to this company information material to the risk. And this company shall not be bound under this policy by any act or statement made to us by any agent or other person which is not contained in this policy, or in any written paper above mentioned.”
There is nothing in the record to indicate that the claim was not for an honest loss. The company defended upon two grounds, («) that at the time of the application for the insurance the personal property insured was under levy and execution on a judgmént against the plaintiff, which he failed to disclose to the company’s agent at the time the insurance was effected; and (5) that the plaintiff stated that there were judgments against him to the amount of <$500, when in fact judgments existed to the extent of $1,500, which were a lien on the insured real estate. These objections were based upon the allegation that the facts referred to increased the risk, and had they been disclosed to the company a larger premium would have been demanded.
It will be noticed that the warranty is not in terms a warranty against incumbrances, nor did the policy contain a clause that the insurance should cease in case the property in ques
The only remaining point is the matter of the incumbrances. There was not, as I have before observed, a distinct warranty against incumbrances. The warranty was against untrue statements in the application. It is not denied that the incumbrances exceeded the amount there stated by the insured. Whether it was by accident, ignorance, or design does not appear. The court below charged the jury, and this is the main contention here, that this avoided the policy at the election of the company, but that the latter could waive the right to avoid it, and submitted the question of waiver to the jury, who found against the company.
I do not think that the mere fact of the company’s calling
Judgment affirmed.