Reed, Et Vir v. the American Ins. Co. of Newark, N.J.Reed, Et Vir v. the American Ins. Co. of Newark, N.J.
Lead Opinion
In this сase the plaintiff in error brought suit on a policy of fire insurance. After a trial on the merits, the jury found a verdict for the insurance company. Plaintiff below has appealed.
We аre of the opinion that plaintiff below sufficiently proved that she was the sole and unconditional owner of the property within the meaning of the policy requiring sole and unconditional ownership as a condition to the insurance when she showed that she had unqualifiedly agrеed to buy it, and the vendor had unqualifiedly agreed to sell it, at a fixed price and on terms, pursuant to which she had entered into possession of and conditionally held and enjoyed property until she ultimately paid for it in full.
The eventual performance on the married woman’s рart of her original bargain inures to her benefit and relates back to the inception оf the obligation contemplated by the original agreehient. It therefore does not liе within the province of the insurance company to now repudiate on the married wоman’s behalf the legal effect of an agreement that, while it was inchoate, may havе been unenforceable against the married woman insured, but since has nevertheless become fully carried out and executed and not repudiated or disaffirmed.
The vendor in such case was at all times in a position to compel the married woman to pay for the. property and to suffer any fire loss that occurred up till the time of the fire so long as thе married woman insured continued to act 'upon an affirmance of the contract and not in negation of it, because the vendee could not have retained the possession and enjoyment of the property and at the.same time have repudiated the оbligation she had assumed for its purchase price.
So, as to .the insurance compаny, the plaintiff below became and remained the sole and unconditional owner of thе
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property so long as she elected to affirm and perform hey agreement by continuing in possession and claiming under her purchase, although as a married woman she could, аt any time, have elected to disaffirm the contract and discontinued performance by refusing to complete her payments of the agreed purchase price. The latter contingency, however, became of no concern to the insurance company when no such repudiation transpired before or after loss. See: Insurance Co. of North America v. Erickson,
To the extent that the Court’s charge varied from the rule just stated, it is disаpproved as incomplete, but not necessarily as amounting to reversible error in thе absence of a request for a more complete instruction on the subject of sole and unconditional ownership as applied to a situation like the case at bаr wherein the contract of the married woman was subsequently performed in full.
Qne of the issues, рerhaps the principal one, tried by the jury was on the defendant’s plea that the insured willfully sеt fire to the insured property. There was circumstantial evidence legally sufficient to suрport a finding in the affirmative of defendant’s plea setting up this issue. In civil cases the preрonderance of evidence required where circumstantial evidence is relied on as the method of proof, is a preponderance of all reasonable infеrences that might be drawn from the circumstances in evidence to prove the princiрal fact sought to be established sufficient to outweigh all other contrary inferences. King v. Wеis-Patterson Lumber Co.,
Affirmed.
Concurrence Opinion
(concurring specially). — At the time the policy was procured, was the married woman unconditionally bound tо pay the purchase price? If the lpss had occurred then, would she have sustained the loss? Could she not have refused to pay the purchase price and thus thrown the loss upon the vendors ? It seems to me that the answer to these questions is obvious', and that such answers show thаt the married woman vendee could not have been compelled to pay the рurchase price and therefore she was not the sole and unconditional owner when the policies were written. With this qualification I concur in the affirmance.