124 Pa. 484 | Pa. | 1889
Opinion,
. This suit is upon a policy issued by the defendants, December 10,T880, to William L. Elkins & Co. against loss by fire on the Belmont Oil Works, to the amount of §1,575. The contract covered a term of one year from December 1, 1880 ; the fire occurred March 9, 1881, and the loss apportioned to this policy is $710.36 ; as to this there is no dispute.
The policy contained stipulations that the company should not be liable on the policy, or on any renewal thereof, until the premium therefor was actually paid, and the deposit made; that if the premium was paid to any person, other than the duly appointed or authorized agent of the company, such payment should be at the sole risk of the assured, and that nothing less than a distinct specific agreement, clearly expressed and indorsed on the policy, should be construed as a waiver of “ any printed or written condition or restriction therein.”
The policy was sent to Crane for delivery to Elkins; the secretary himself says that Crane had the right to deliver the policy, and to collect the premium; to this extent, at least, Crane represented the company, for the contract was incom
But the company has offered in evidence certain by-laws of the company, with reference to which the policy was made and accepted, as follows:
“ Sec. 10. All general and local agents or surveyors shall be appointed by the secretary, and shall be furnished with a certificate of his or their appointment, with the seal of the company affixed thereto, setting forth the powers of such agents, and without said certificate no person shall be, or is authorized to act as agent for this company.”
“ Sec. 24. No insurance, whether original or continued, shall be considered as binding until the cash premium shall have been actually paid to some duly authorized and commissioned agent of the company.”
“ See. 42. These, and all other by-l'aws hereafter adopted, shall not be abrogated, modified, or in anywise altered or added to, unless at a regular meeting of the board of directors ;'and all by-laws heretofore adopted by this company and inconsistent herewith are hereby repealed.”
Whilst these by-laws are declared to be part of the contract,
It is argued, however, that as the company is a mutual company, the plaintiffs are presumed to be acquainted with the bylaws, and therefore had notice by the 24th section, that his insurance was not binding until the cash premium was actually paid to some duly authorized and commissioned agent of the company. The by-laws were made, however, solely for the protection of the company, and, as we said when the case was here before, the company was not bound to adhere to them. If they chose to dispense with the protection thus offered, it was competent for them to do so. If the company had issued this policy to Elkins, and expressly agreed to give him time on the ■payment of the premiums, taking his promissory note for the amount thereof, payable at a future day, it would not be pretended, we think, that because the premium was not actually paid, there was no liability in case of loss, during the period of credit. Or, if the company had placed the policy in the hands of some person expressly for delivery, with instructions to receive the premiums, and the premium was paid and the policy delivered accordingly, it would certainly not avail the company anything, in case of loss, that the premiums had not been paid to “ a duly authorized and commissioned agent of the company.” These by-laws were made solely in the company’s interest, and it was competent for the company in a particular case to waive strict adherence thereto.
If, notwithstanding these by-laws, the company actually authorized Mr. Crane to act for them in delivering this policy, in receiving premiums thereon, and adopted a course of dealing with him wholly inconsistent with its provisions, they cannot now set them up to prevent the plaintiff’s recovery. This caso
The judgment is affirmed.