Nutting v. Minnesota Fire Insurance, 98 Wis. 26

98 Wis. 26 | Wis. | 1897

PiNNEY, J.

The undisputed evidence shows that the policy of insurance upon which the action is founded was never delivered by the defendant as a completed contract, and that no contract of insurance was concluded between the parties. It is evident that there was no meeting of their minds, in the legal sense of the term. The evidence of Gris-wold, the plaintiff’s agent, who was seeking to perfect a policy of insurance for him for $1,000 on the property in question, and for one'year, is quite decisive: The policy was written and was handed to him by Burke, of the firm of Magill & Burke, agents for the defendant. “ He [Burke} said he would like to keep it a few days, because he did not know whether the company would carry it or not. So he took the policy home with him, but was to let me [Gris-wold] know if the company would carry it or not.” He met Mr. Burke on the street quite a number of times after he took the policy away. “I never asked him about it. Burke did not deliver the policy to me [Griswold], My idea was that he [Burke] had sent the policy to Nutting [the plaintiff], and that, if the company did not carry the policy, that he [Burke] would let me know.” Burke testified that the policy was written October 1st, and delivered by him in person to Griswold on that day, and he told Griswold when he handed him the policy pretty much what he told him “ when he gave us the order for the insurance,— that it was doubtful whether the company -would carry it, and I would like to have him hold the policy, and not deliver it to Nutting, till he got word from the company, one way or the other, about it. He said he would do so.” Burke testified that he was to submit the question to them, write the policy, and send in a report right away, so they “ would have time before the policy goes into effect to either accept or decline the risk.” He (Griswold) said that was all right. Griswold testified that Burke said that, if the company did not carry the risk, he would let him know.

Although the policy was placed in the physical custody of Griswold, and he had a momentary manual possession of it, yet. this was not for the purpose of completed delivery, or to make the policy presently operative, but quite the reverse. This result was what both Griswold and Burke sought to avoid, unless and until it could be ascertained whether the defendant company would assent to and cany the risk. Accordingly, Griswold kept the money put into ■his hands to pay the premium, and Burke took the policy home with him. The defendant had not yet acquired any right to the money of the plaintiff for the policy; for it was to be operative upon a condition that did not occur, namely, that the defendant would accept the risk. The plaintiff’s agent, Griswold, should have pressed the matter to an early and decisive conclusion, obtaining a consent to, or refusal of, the risk. The failure of Burke to notify Griswold of the defendant’s refusal to carry it would not place it under any contract obligation to the plaintiff. Parol evidence is admissible to show that a writing which is in form a complete contract, of which there has been a manual tradition, was not to and did not become a binding contract until the performance or occurrence of some condition precedent resting in parol. Reynolds v. Robinson, 110 N. Y. 654; Juilliard v. Chaffee, 92 N. Y. 529, 535; Benton v. Martin, 52 N. Y. 570; Brewers’ G. Ins. Co. v. Burger, 10 Hun, 56; Ware v. Allen, 128 U. S. 590, 595; Burke v. Dulaney, 153 U. S. 228; Adams v. Morgan, 150 Mass. 143; Faunce v. State Ins. Co. 101 Mass. 279.

The undisputed evidence shows clearly that there was never any delivery of the policy in suit, and that there was not a completed contract of insurance between the parties. The circuit court erred, therefore, in denying the defendant’s motion for a nonsuit, and in refusing to direct a verdict for the defendant.

By the Court.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.