191 Iowa 1083 | Iowa | 1921
o‘ ‘ Q. What was the proposition you made them ? A. That, if they wanted to consider my loss, I would consider the premium. Q. Was that all of the proposition you made them? A. That was the sum of it. I did not tell them how much of a loss I had. I don’t believe I told them what it was. Q. Now you didn’t send the company any proofs of notice, did you, — any verified or sworn statement of a loss which you had had? A. Nothing only— Q. The only thing you sent the company, you contend, is the letter you wrote them, offering’ a proposition, as you stated it? A. Yes, sir. Q. What, if anything, did you tell them in that letter? A. I told them that I never had received any policy, and, if they would consider my damage I had had on my corn, why, I would consider the premium. I would be glad to pay them their premium if they would pay me my damage.”
He says he kept no copy of the letter, and that it was written with pencil and addressed to the company at Des Moines. He says further that in the letter he mentioned that the damage was caused by hail. The evidence tends to show that this letter was received by plaintiff, since defendant testifies that he saw it later in possession of plaintiff’s collector. He received no word from the company in response to his letter. The letter was not produced or introduced in evidence, and the foregoing is the substance of the evidence in reference to the alleged proof of loss. He says that later, and in October, a collector for plaintiff came to Lenox and again demanded payment of the note, and defendant then tried to get him to settle; and that the collector told him that he had no authority to settle or arbitrate, or
1. It seems to be conceded in argument by both parties that an application for insurance does not purport to contain all of the terms and conditions of the policy applied for, and that the application is for such insurance as, in view of the particulars submitted, the company sells, and that there must be an acceptance or meeting of the minds. As appellant puts it, an application for insurance constitutes an offer, and not a completed contract, and the offer must be accepted (citing numerous cases); and we do not understand appellee to controvert the proposition. Appellant states the general rule that the acceptance must be communicated to the offerer. They concede, however, that there is an exception to the foregoing rule, and that is the rule of post, so called. They argue that the rule does not apply here, because the offer was not made by post, and an acceptance by post was not reasonably within the contemplation of the parties. They argue, too, that, in the absence of any other evidence to show consent of the company in the making of a contract off insurance, delivery of the policy must be shown. On these last two propositions they cite 9 Cyc. 295; 19 Cyc. 603; Tuttle v. Iowa S. T. M. Assn., 132 Iowa 652. Appellee also cites the Tuttle case to sustain their proposition, which will be stated in a moment. Appellant further contends that the presumption that a letter properly addressed and mailed was received by the addressee, is rebuttable. Watson v. Richardson, 110 Iowa 673, and other cases. If it was necessary to show that the policy was
Going back a moment, it is said that the offer was not made by post. It appears that the application was taken by an agent of plaintiff, at Lenox, and, as we understand the record, it was by him forwarded to the plaintiff company at Des Moines by mail. Substantially all the business between plaintiff and defendant was conducted through the mails. The policy itself provides that notice should be sent through the mails, registered. Considering these circumstances, and all the circumstances in the record, and the distance between Des Moines and Lenox, it seems to us that it was reasonably contemplated that the policy, when the application was accepted, should be sent by post; that no other method could be said to be reasonably contemplated by the parties. On the other hand, it is contended by appellee that the rule is that a valid contract requires an offer and an acceptance, which must be communicated to the offerer, or put in the -course of communication by an act; and further that, where the parties must have contemplated that, in accordance with the ordinary usage of mankind, the post would be used to communicate the acceptance, the acceptance is communicated and the contract complete from the moment the letter addressed to the offerer, containing the acceptance, is mailed by the of-feree. Stating it in another way, they put it that an application for insurance, sent either directly or through an insurance agent, to the main office of an insurance company in another town, is accepted and the contract of insurance completed by the execution of the policy and its deposit in the mail, addressed either to the applicant or to the agent of the insurance company, for delivery to the applicant. We think this is the rule, not only of our own cases, but of the holdings of appellate courts
On the testimony of defendant, it-appears that he did not consider the letter proofs of loss, or that he was attempting to comply with the policy. He was at that time claiming, and he so stated in the letter itself, that he had never received the policy, and was contending, even at the trial, that there never was any valid policy of insurance. It is hardly possible that he would be making a claim for insurance when he himself considered that he had none. He did not, in fact, under his own evidence, make any definite claim for insurance. The letter did not, in many respects, comply, or attempt to comply, with the provisions of the policy. It was not under oath; it did not describe the land; it did not give the amount of his damage or