46 P. 363 | Or. | 1896
Opinion by
This is an action upon a fire insurance policy which provides that as a part of the proof of loss the assured “shall produce a certificate under the hand and seal of a magistrate or notary public (nearest to the place of the fire, not concerned in the loss as a creditor or otherwise, nor related to the assured), stating that he has examined the circumstances attending the loss, knows the character and circumstances of the assured, and verily believes that the assured has, without fraud, sustained loss on the property insured to the amount which such magistrate or notary public shall certify”; and, if the claim be for a building, “the duly verified certificate of some reliable and responsible builder as to the actual cash value of it immediately before said fire”; and also that “any notice given to, representation made to, or by, or knowledge of, any solicitor or agent representing this company, of any fact, change, act, or thing relating to the property, title, occupancy, incumbrances, or otherwise, insured under this policy subsequent to the issuing of the same, shall not in anywise be binding on, or be regarded as notice to, or knowledge of, this company; but, in order to be binding on the company, must be endorsed in writing hereon, as provided in the terms and conditions of this policy”; and, “that in case of * * * the erection of adjoining buildings * * * without being immediately notified to this company and its consent thereto obtained in writing
The action is defended upon the grounds (i) that no proof of loss was made as provided in the policy; and (2) that the contract of insurance became null and void by the erection of an adjoining building within the prohibited limits without the written consent of defendant. The plaintiff claims, however, that he furnished sufficient proof of loss, and that the stipulation of the policy in reference to the effect of the erection of adjoining buildings was waived by the company. The insurance was effected through Irle, a soliciting agent of defendant, with authority to receive and forward applications to the home office, countersign and deliver policies when issued bj^ that office, and to collect the premiums thereon. After the delivery of the policy, but before all the premium had been paid, an electric car barn was built within eight or nine feet of the building insured, and when plaintiff came to make the deferred payment he notified Irle of that fact, and inquired as to the amount of additional premium required on account thereof. With this knowledge of the increase in the risk, Irle accepted the balance due on. the premium, and wrote to the company to ascertain the additional amount required on account of the erection of the car barn, and upon receipt of its answer notified plaintiff of the amount, but it was never paid nor the policy can-celled. Within a short time after the fire, the plaintiff, through his attorney, made out and forwarded to the home office of the company proof of loss, regular in all respects, except that it had. neither a certificate of the magistrate or notary public nearest the fire, nor a builder’s certificate as required by the policy. Upon its receipt by the company it was promptly returned with the objection that “it does not show whether the conditions of the policy have been violated or not, furnishes no proof as to