177 Wis. 41 | Wis. | 1922
The insurance policy contains this provision:
“The interest of the insured in this policy is not assignable except with the consent of the company manifested in writing indorsed hereon or attached hereto and in case of any attempted transfer of this policy or a termination of the interest of the insured therein or in the property insured herein, either by sale or otherwise, without such written consent this policy shall thenceforth be void and of no effect.”
Also the following provision:
“In case any person or persons insured in this company shall sell, convey, or assign such insured property during the time term of the policy, it shall be lawful for the insured to assign and deliver to the purchaser such policy of insurance, and the assignee shall then have all the benefit thereof, provided, that before any loss happens, he, she, or they shall have obtained the consent in writing of this company to such assignment and have had it indorsed on or annexed to the said policy.”
And further.;
“This policy shall be void if the subject of insurance be a building on ground not owned by the insured in fee simple or if the subject of insurance be personal property and become incumbered by a chattel mortgage or be realty and be*45 come incumbered by a real-estate mortgage, unless the company shall consent thereto by writing indorsed hereon or annexed thereto.”
It is undisputed that the consent of the company as to the Swillie mortgage, the transfer from Jacquart h> Deso-tell, and the mortgage from Desotell to Jacquart were not indorsed on the policy. In view of the above quoted provisions from the policy, the absence of such consent so indorsed rendered the policy void unless the forfeiture thus created was in some manner waived. Keith v. Royal Ins. Co. 117 Wis. 531, 94 N. W. 295, and cases there cited. It is contended on the part of the plaintiff that the request proceeding from Buckman to Smeesters to meet him upon the premises and to bring Jacquart with him with a view of adjusting the loss imposed such a burden on the part of the plaintiff as to constitute a waiver of the forfeiture. Conceding for present purposes that the inconvenience caused the plaintiff in meeting Buckman upon the premises and in conveying Jacquart thereto was sufficient to constitute a waiver of the forfeiture, it should be borne in mind that the waiver applied only to such matters creating a forfeiture as were within the knowledge of Buckman or the company. The various transactions relied upon tO' constitute a fbr-feiture are, first, the execution of the Swillie mortgage; second, the conveyance from Jacquart to Desotell; and third, the mortgage from Desotell to Jacquart. It is conceded that Buckman had knowledge of the conveyance of the property from Jacquart to Desotell. Buckman claims, however, that while he had knowledge of the conveyance he did not have knowledge of the fact that the company had not consented to the transfer. However, the secretary of the company was sworn as a witness and testified that he knew that the company had not consented to the transfer. So the situation is this: Buckman had knowledge of the transfer. His knowledge was the knowledge of the company. The secretary had knowledge that the company had not consented
However, there are two- remaining transactions either of which constituted a forfeiture. They are the Swillie mortgage and the mortgage from Desotell to Jacquart. Buck-man maintained that he did not know of the existence of the Jacquart mortgage. The jury found that he did. Appellant contends that there is no evidence to support this answer, and we are compelled to agree with this contention. No witness testified that he told Buckman, or any one connected with the company, of the existence of the mortgage from Desotell to- Jacquart. Smeesters unqualifiedly admits that he did not tell him. . Jacquart does not claim that he told him. Desotell was not even asked whether he had told him.' The only -testimony relied upon by respondent is the following from the cross-examination of Buckman:
“Q. But, knowing all about this situation and the title, yo'u told him you were coming over there to adjust that loss, didn’t you? A. Yes, but I did not know that he didn’t have the policy sent over. I couldn’t know that. Q. But before you told him to meet you to adjust that loss, you knew about the state the title was in, didn’t you? A. I knew about the state of the title, how that was in, but I didn’t know that he didn’t have that policy sent over. Q. That was the only thing you didn’t know? A. I supposed as a business man he would have sent that over when I directed him over the telephone.”
Up to this point the examination of Buckman had dealt
Some very vague and indefinite testimony was given by one Julian Romauld, which, it is claimed, furnishes a basis for the finding of the jury. He testified that he was present at the meeting between Smeesters, Jacquart, and Buckman and heard the conversation. He testified that he supposed that Buckman knew about the Desotell deed before he came there, because he talked about it, and that he heard no information given him there gbout the deed. He was further asked whether information was given to Buckman about the Jacquart mortgage, to which he replied, “Not that I know.” He was asked whether he heard of the conversation and he replied, “Well, I was there right along.” Upon cross-examination he testified that he did not hear anybody say that Jacquart had any mortgage, and that he did not hear anything that day as to whether Jacquart had a mortgage or did not have. He heard Buckman tell Jacquart that he couldn’t get anything on his mortgage. We can discover no probative force whatever in this testimony as proof of the fact that Buckman knew .of the existence of the Jacquart mortgage before he came to the meeting. In view of the fact that Buckman specifically denied having knowledge of the mortgage from Desotell to Jacquart, and
■ By the Court. — Judgment reversed, and cause remanded with instructions to dismiss plaintiff’s complaint.