109 Ind. 273 | Ind. | 1887
This was an action by David Allen, Jr., and Frank Allen against the Phenix Insurance Company of Brooklyn, in the State of New York, upon a policy of insurance issued upon a lot of hay and other property, both real ■•and personal, and situate in Switzerland county.
The action was commenced in the Switzerland Circuit
The complaint was in three paragraphs. The first and third paragraphs counted upon the policy of insurance, alleging the loss of the hay and some other personal property by fire.
The second paragraph was in form a complaint upon the policy, but alleged a mistake in its execution, and asked a reformation in accordance with what was claimed to have been the true intention of the parties. This paragraph was held to be an equitable proceeding, and triable by the court alone.
Demurrers to each paragraph of the complaint were severally overruled.
The first and third paragraphs were submitted to a jury for trial. After the evidence was concluded the circuit court, instructed the jury to return a verdict for the defendant on the first paragraph, which they accordingly did. But upon the third paragraph the verdict was for the plaintiffs, and they had judgment on the verdict.
Error is assigned upon the overruling of the demurrer to the third paragraph of the complaint, and upon the refusal of the circuit court to grant a new trial.
The third paragraph of the complaint charged that the plaintiffs were, on the 9th day of May, 1884, the owners of a forty-acre tract of land in section five (5), in township two (2) north, of range three (3) west, on which had been erected and were standing a one-story, shingle-roof, frame and log dwelling-house, and a shingle-roof, frame granary; that on the same day, the plaintiffs were, as lessees, occupying and cultivating a tract of land containing one hundred and eighty-four acres in section ten (10), in the same township and range, belonging to another person; that at the same time the plaintiffs were the owners of twenty-five tons of hay, two horses, and a considerable amount of other specifically described personal property situate and kept in a barn located
It is claimed that this paragraph of the complaint was bad upon demurrer, upon the ground that it was a complaint in part upon a written contract, and in part upon a parol contract, which latter contract had been merged into and superseded by the written contract; also upon the ground that it rested the right of the plaintiffs to recover, upon extrinsic facts to be proven by parol evidence, varying and contradicting the alleged written contract of insurance.
No rule of law is more firmly established than the one which declares that a parol agreement is merged in, and superseded by, a subsequent written agreement embracing the same subject-matter. It is equally well settled as a general rule, that parol evidence is inadmissible to either vary or contradict a written instrument. It is also true, that the locality in which goods are kept is an important element in a contract of insurance, and that ordinarily it must be made to appear that the property was at the place designated in the policy when it was destroyed. 1 Wood Fire Ins., section 47. But no one of these rules is applicable to the case made by the paragraph of the complaint under consideration. The averments of this paragraph were to the effect, that the words on the face of the application which gave a false description of the location of the personal property afterwards destroyed by fire, and which caused a misdescription of such location to be inserted in the policy of insurance, were written into the application by an agent of the defendant without
Evidence was introduced, and instructions to the jury were given and refused, and the cause was in all respects tried in accordance with the general principles governing actions on policies of insurance above enumerated. There was also evidence tending to sustain the verdict, and hence no sufficient reason has been shown for a reversal of the judgment. North British Mercantile Ins. Co. v. Crutchfield, 108 Ind. 518.
The judgment is affirmed, with costs.