26 Wis. 78 | Wis. | 1870
The letter of May to Dorr was properly admitted in evidence for the purpose of showing, as it did clearly, that the defendant, through its agent, had notice of all the facts respecting the contract, after which its still retaining the money for the premium would constitute a ratification, even if there had been any defect in the original authority of the agent to make such contract. The want of evidence of this character was one of the grounds for reversing the judgment when the case was formerly here, as reported in the 21st Wis. 458.
The appellant further claims that parol evidence that the property was to be insured on deck was inadmissible. He says the evidence was uncontradicted and conclusive that the agreement to insure had reference and was subject to the terms and conditions of the written policies. And he then claims that inas
The question whether in this case there was a special permission to ship the insured property on deck,
Nor was the fact that the plaintiff had not set out in his complaint all these terms and conditions of the written policies, any ground for excluding his evidence on account of a variance. It did not appear, until the defendant’s testimony had been introduced, that those terms and conditions were any part of the contract. Assuming that the defendant’s evidence as to the custom had the effect of incorporating them into it, the very fact that they were prepared with such evidence shows that they were not misled by the variance, but were perfectly cognizant of the nature of the plaintiff’s claim, and were prepared to contest it upon the assumption that the real contract was as they claimed it to be. The only one of the conditons under which they suggested any defense, was that in relation to the property being on deck, and on that both sides introduced their evidence. There was no claim or pretense on the part of the defendant that it was taken by surprise, or that it had any further evidence that it might have procured on this contested point. • If the complaint was defective in not setting out more fully these terms, which we do not determine, the court should have permitted an amendment on the trial. And the admission of the plaintiff’s evidence to avoid the effect of the defendant’s proof of the custom, was, under the circumstances, no ground for a réversal.
The court, in its charge, after stating to the jury that the contract was valid, but was subject to the terms of the written policies, added: “ The plaintiff would therefore be entitled to recover the insurance money in case of a loss.” This was excepted to; the only possible reason would seem to be, because the court did not add the qualification that the loss must be one within the terms of the agreement, But that
The other exceptions to the charge involve merely the questions that have been already considered. There was no error, and the judgment must be affirmed.
By the Court. — Judgment affirmed.