155 Mich. 564 | Mich. | 1909
1. This case is before us for the second time. 145 Mich. 516. A sufficient statement of the case and of the evidence is there made. Upon the first trial the court directed a verdict for the-plaintiffs. Upon the new trial the questions of the cancellation of the policy and the authority of Byron J. McCormick to act for the plaintiffs in the matter were submitted to the jury. We held upon the former hearing that, if the jury should find that Miss Ferrier, who represented the insurance brokers who issued and attempted to cancel the policy, obtained the policy, as she testified, then the jury should find there was a valid surrender. Counsel for defendant now insist that Miss Ferrier’s testimony is true, that she did obtain the policy, and that Byron J. McCormick was the agent of the plaintiffs. Counsel do not point out wherein the testimony in this case differs in any respect from that of the former trial. The decision in that case controls this question, unless the testimony upon the two trials differs. The case has been submitted to the jury in accordance with that decision, and the jury have found that the policy was not canceled. The question whether the case should have been submitted to the jury is res judicata.
2. Is the policy void because the plaintiffs were not the-sole and unconditional owners of the personal property described in the policy? Prior to the issuance of the policy Arthur L. McCormick had made a purchase of the real estate and of the personal property described in the policy upon contracts — one with the plaintiffs, the other with A. H. Andrews Company. The contract made with
3. It is further claimed that plaintiffs cannot recover because no notice was given to the defendant of the fire, and no proofs of loss were furnished in compliance with the requirements of the policy, and that the same were not waived. These defenses are not open to the defendant because it gave no notice of them in its pleadings. Hare v. Protective Ass’n, 151 Mich. 225, and authorities there cited.
The judgment is affirmed.