Stewart v. St. Paul Fire & Marine Insurance
214 N.W. 58
Minn.
1927
Check Treatment
Dibell, J.

Action to recover for the breach of a cоntract to insure the plaintiff’s property. There was a verdict for the ‍​‌​‌​​​​​​‌‌​​‌‌​​‌‌​​​‌‌‌​‌‌​​​​‌​​‌​​​​​​​‌​‌‌‍plaintiff. The defendant appeаls from the order denying its alternative motion for judgment or a new trial.

On October 17, 1924, the plaintiff’s barn in North Mankato was damaged by fire. On August 17, 1921, the defendant, through its agent Theodore Williams, delivered to the plaintiff a policy expiring August 17, 1924, covering this property. The company had carried a policy on the property prior to that time. The plaintiff claims that in the first few days of August, 1924, he had a convеrsation with Williams relative to this insurance; that at that time hе told him that because of his becoming interested in a bank, an officer of which was writing insurance, he, Williams, could not ‍​‌​‌​​​​​​‌‌​​‌‌​​‌‌​​​‌‌‌​‌‌​​​​‌​​‌​​​​​​​‌​‌‌‍have his insurance longer, except the insurancе on the barn; and that at that time it was agreed that the рolicy on the barn should be renewed when it expired and that Williams would take care of it. The testimony of Williams is that no such conversation took place at this timе. He says there was a conversation in the fall of 1923 whеn the plaintiff told him that he could not have his insurance longer for substantially the reasons before stated. There are circumstances quite strongly corroborating the testimony of Mr. Williams, but the question was one of fact for thе jury.

The case comes fairly enough within ‍​‌​‌​​​​​​‌‌​​‌‌​​‌‌​​​‌‌‌​‌‌​​​​‌​​‌​​​​​​​‌​‌‌‍Eifert v. Hartford Fire Ins. Cо. 148 Minn. 17, 180 N. W. 996. There is some claim that the agreement was not suffiсiently definite. Williams represented some 20 companies. The jury could find that there was a talk ‍​‌​‌​​​​​​‌‌​​‌‌​​‌‌​​​‌‌‌​‌‌​​​​‌​​‌​​​​​​​‌​‌‌‍something like two wеeks before the expiration of the policy аbout continuing the insurance in the same company, “a renewal of the same policy.” *365 As was said in Ames-Brooks Co. v. Aetna Ins. Co. 83 Minn. 346, 86 N. W. 344, “a proper administration of justice will not permit us to be over sub tie, but we must interpret ‍​‌​‌​​​​​​‌‌​​‌‌​​‌‌​​​‌‌‌​‌‌​​​​‌​​‌​​​​​​​‌​‌‌‍tbe contract from tbe standpoint of the practical business men who made it, * * * and tbe establishеd course of business between them.” Tbe evidence sustains tbe jury’s finding that there was a contract by tbe defendant to renew tbe policy and a breach of it.

Tbe defеndant claims that tbe case was tried upon tbe theory of a contract of present insurance. Tbe plaintiff does not allege a contract of present insurance. It is true, too, that there is no allegation of tbe breach of a contract to furnish insurance. For this reason tbe complaint did not state a cause of action. No objection was made until tbe close of tbe case. An amendment could then havе been made, would doubtless have been granted if asked, and tbe absence of it should be overlooked nоw. While some uncertainty of theory appearеd at times in tbe trial it may be said fairly that tbe case was tried on tbe theory of a breach of contract to insure. That was tbe definite theory upon which it was put to tbe jury.

Order affirmed.