92 Wis. 510 | Wis. | 1896
1. Under tbe conceded facts in this case, we-think that it is impossible to sustain or justify tbe direction of a verdict for tbe plaintiff. It is beyond dispute that there-bas been a breach of tbe conditions of tbe policy upon which tbe action is founded. Tbe assured did not, as it agreed it. would, after the fire, “forthwith separate tbe damaged and.
2. The evidence as to what took' place between the local agent of the defendant, McNabb, and Burgess, the secretary and treasurer of the plaintiff, wholly fails to show a waiver of the conditions. After his connection with the writing of the policy had ceased, McNabb had no authority, as local agent, to waive these conditions. Hankins v. Rockford Ins. Co. 70 Wis. 4; Bosworth v. Merchants' F. Ins. Co. 80 Wis. 393; Stevens v. Queen Ins. Co. 81 Wis. 335; Bourgeois v. Mut. F. Ins. Co. 86 Wis. 402. Besides, there is no claim that McNabb ever, in any way, authorized or consented to the disposition and removal of the 908 cases, and the alleged waiver by him as local agent was oral, and not in writing, as required by the- terms of the policy. Carey v. German Am. Ins. Co. 84 Wis. 88; Knudson v. Hekla F. Ins. Co. 75 Wis. 198; Bourgeois v. N. W. Nat. Ins. Co. 86 Wis. 606. The defendant, after the proofs of loss had been re- ' ceived; required an examination of Burgess, the plaintiff’s secretary and treasurer; and he was examined accordingly, ' but by the terms of the policy it is provided that no waiver should arise in consequence of such requirement and examination. There is no other ground for imputing any waiver
By the Court.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.