Nord Deutsche Ins. Co. of Hamburg v. Hart

230 F. 809 | 2d Cir. | 1916

LACOMBE, Circuit Judge.

The risk described in the binder, is a “frame dwelling house.” Defendant contended that the risk was in fact a “hotel,” or a “builder’s risk.” At one time the premises had formed part of a group of buildings which together constituted a hotel. That condition of affairs had ceased to exist before the binder was signed. Repairs had been undertaken, which would bring the premises within the definition of a “builder’s risk”; but these had been completed before the binder was signed. It is not necessary to rehearse the undisputed testimony; that the building, on the date the binder was signed, was a “frame dwelling house” was abundantly proved; it was inhabited on the day of the fire.

[1] Defendant further contends that the court erred in refusing to permit defendant to show the technical meaning of the expressions “dwelling house risk” and “builder’s risk” and tlje bearing this classification has upon the rates charged for insurance. The court did allow defendant’s witness to testify fully as to what a “builder’s risk” was. Since this building was not within the terms of such definition all testimony offered to show the rates charged for builder’s risks, absolutely or relatively, was immaterial.

[2, 3] It is further contended that the contract sued upon (the binder) is void because it does not express any consideration. We find no merit in this point; under the binder the insured had agreed to pay the regular premium of the policy to be issued. At all events, as the insured relied upon the binder and did not protect herself by getting insurance elsewhere, this change in her condition would constitute a good consideration.

[4] There was a conflict of testimony upon one point in the case. Plaintiff’s story is that he applied for insurance to the authorized agent of the company, and that the agent suggested they should see an officer of the underwriter; defendant’s offices being in the same building as those of the agent. That they saw the officer of defendant, who, on being told the risk was a “frame dwelling house” authorized the signing of a binder. IE this be so, the contract was entered into, directly, by defendant. The officer of the underwriter testified that no such interview with him took place. If that be so the contract was made by the regular authorized agent of defendant, and, of course, bound it.

[5] We find no error in the exclusion of a map offered by defendant on which it entered its risks. Without expressing any opinion as to the competency of such evidence, we can see nothing in the record which would make it relevant. If it did not include the risk which its agent had signed a binder for, that circumstance would not affect the plaintiff. If it did include the risk, described as a “frame dwelling house,” it merely corroborated plaintiff’s contention. Presumably it did not include the building classified as a hotel risk, or a builder’s risk, because defendant insisted that, as such, it would not have underwritten the building at all. If, however, it did contain the building thus classified, there was no defense left to the action, only a somewhat larger sum would be deducted from the recovery for premium.

The judgment is affirmed.