31 Conn. 193 | Conn. | 1862
The testimony of Fuller relative to the waiver of defects in the preliminary proofs was clearly admissible. The plaintiff was entitled to prove that waiver, and by any evidence which tended to prove it. An' admission of the company made by their general agent while acting as such, and in respect to the particular loss and controversy, that it
2. Where a motion merely shows that a party claimed that certain evidence was not admissible in any way to affect the terms of a written instrument, without showing that the claim was made when the evidence was offered; or that the evidence was let in subject to exception, and the claim was subsequeiitly made that it should be excluded ; or that the court were requested to charge as to its effect or the consideration to be given to it, no question is raised which the court is bound to consider. And such is the import of the motion in this case. It does not appear when or in what way the claim was made, or what disposition the court made of it. Nevertheless, no injustice was done if the evidence was in fact regularly objected to and admitted, or a request to charge the jury that the evidence was not to be considered was disregarded by the court. The plaintiff sought permission orally to change the place of storage, and of course the risk. The conditions of the policy in respect to a description of the new risk in a written application or survey were waived, and there is no representation of it in or upon the policy; and it was competent for the plaintiff to show what the new risk was when taken; that it was fully though orally represented to the defendants, and known to them; and if inconsistent with any condition of the policy, that the condition was waived. None of these affected the terms of the written policy. The cases read and relied on at the bar to this point, are cases where there was a written representation of the risk, either in the policy or application, and parol evidence of a usage, or of a cotemporaneous parol agreement, or that the defendants had
8. We are satisfied that the defendants were not entitled to the instructions requested. As to all the articles named in the request except the wine in casks, it was abstract, and the court was not bound to dissect and charge the jury in respect to any part of it. Cowles v. Bacon, 21 Conn., 451; Marlborough v. Sisson, 23 Conn., 44. The point, and the only real point made on the trial and which could be raised by the request, was, that the policy was void by reason of the fact that wine in casks was stored in the barn at the time of the fire, and was not, in terms, agreed to in the indorsement.
The defendants undertook to stand upon a defense which possibly they might have made if the cider had remained in the original place oí storage and the wine had afterwards been stored with it. W e say possibly, for it is questionable whether, upon a just and reasonable interpretation of this policy, such storage would have constituted a defense, if the dwelling house and its contents had been consumed. There is a condition in it “ that if, after insurance is effected, either by the original policy or a renewal thereof, the risk shall be increased by any means whatever within the control of the insured, or if such building or premises shall be occupied in any way so as to render the risk more hazardous than at the time of issuing the policy, such insurance shall be void and of no effect; ” but that condition would not have been broken by storing the wine in the dwelling house after the issuing of the policy, because “ wine in casks ” is not hazardous to the building, and is in substance declared not to be in the policy ; and of course could not increase the risk to the building, or its contents. The defendants rely however on another condition, which is in these words : — “ If the premises shall at any time after the making of, and during the time this policy would otherwise continue in force, be appropriated, applied or used, to or for the purpose of carrying on or exercising therein any trade, business or vocation denominated hazardous or extra-
Waiving a decision of the foregoing question, and assuming the construction claimed by the defendants to be the correct one, still they were not entitled to the instruction prayed for, and if the charge of the court had been erroneous they would not be entitled to a new trial, because substantial justice was done by the verdict, and no other result could be sustained on the conceded facts.
First, the same testimony which showed that the wine was in the barn at the time of the fire, showed that it was there when the cider was removed to it, and that the defendants knew it. It is not therefore the case which the defendants assume it to be. There was no storage of wine in the premises named in the policy, after it was issued, within the prohibition of the condition; but the taking of a new and distinct risk, in another and different place, although on the same article. It was a short way of making a new contract of insurance. In Benjamin v. The Saratoga County Mutual Fire Insurance Company, (17 N. York R., 415,) the plaintiff obtained an insurance in behalf of a company, in his name as agent. He had at the same time a mortgage on the property and foreclosed it. That changed the title and avoided the policy. The plaintiff wrote to the defendants and asked that the policy should be continued in force for his benefit, and they by letter assented to it. The court held that the effect of this was to create a new contract in a short way between the parties, and that the policy continued in force under the new agreement. So here the plaintiff changed the location of the cider, and made a new risk, and that avoided the policy, for by its terms he warranted that it should remain in his dwelling house in Norwich. The insurance company with full knowledge of the elements of the new risk, agreed that the policy should embrace it and continue in force, and indorsed such agreement on the policy. They thereby took the new risk, precisely as they took the old one, as it was when taken, and must abide it as taken. Nothing can be clearer than that when a company take a risk without requiring any represen
Again, after the removal of the cider to the barn, and while the wine in casks was stored there, and with full knowledge of the fact, the defendants took a new and additional amount on the same cider. If any forfeiture could be incurred it had then been incurred, and taking the additional amount was not only binding as to the additional $100 thus taken as an original insurance, but a clear waiver of any prior forfeiture as to the $200 previously insured. Moreover, in that indorsement the policy is expressly reaffirmed as to the $200, and continued in force for the whole sum of $300. The defendants therefore have in fact twice agreed in writing by indorsement that the wine might remain there, and assumed the risk as it was, with full knowledge, and without requiring
We think it obvious from the foregoing considerations that the defense was groundless and that the defendants were not entitled to a verdict, upon the issues made, whatever the charge of the judge. But that charge did not do the defendants injustice. If it was. true, as the plaintiff claimed, that the defendants agreed that the plaintiff might store, the, cider with the wine, and to make such indorsement upon the policy as was necessary to continue it in force notwithstanding such storage, and had the policy for that purpose, it was their duty to do it, and the agreement was a waiver of the condition. which required it until the duty was performed.
A new trial is not advised.
In this opinion the other judges concurred.