74 F. 114 | Cir. Ct. N.C. | 1896
At the conclusion of the evidence introduced on this trial a motion was submitted to the court for peremptory instructions to the jury to return a verdict in favor of defendant. After hearing and considering able and elaborate arguments of counsel on both sides, I am of opinion that the motion of defendant can properly be allowed; but for tbe purpose of affording the plaintiff full opportunity for having all of my rulings reviewed in an appellate court I will state definitely my conclusions as to the facts and the questions of law involved in the case, and give ample time to counsel of plaintiff to present objections heretofore made in a formal bill of exceptions.
This action was brought upon a policy of insurance executed and delivered by defendant to the plaintiff through the agency of Mr. Buxton. The execution of the policy has been conceded in the pleadings, and the plaintiff has proved the destruction of the property by fire, and tbe due service of the preliminary proofs required by the policy. The chief ground of defense relied upon, is that the plaintiff failed to perform a promissory warranty, expressly and definitely set forth in the policy, that no gasoline or other inflammable substance of like; kind should be kept, used, or allowed upon the premises insured, unless permission should be first obtained from defendant, evidenced by a written indorsement or printed slip attached to the face of the policy; that no such permission was applied for or granted, and the plaintiff, in violation of its express promissory warranty, introduced gasoline fixtures and kept and used gasoline upon the premises included in the policy, which, by explosion, caused, the destruction of the property by fire. This positive and unambiguous promissory warranty was an express condition created by the agreement of the parties, and required substantial performance on the part of plaintiff in order to subject the defendant to liability for indemnity for loss by fire. The plaintiff insisted that Mr. Buxton, the local agent: of defendant, previous to the erection of the gasoline fixtures on the premises, advised as to the proper location of the building in which he knew they were to he placed, and was. fully cognizant of tin; presence and operation of such gasoline fixtures in the laundry building, located under his advice, and he made no objection; and his knowledge, advice, and acquiescence should be imputed to his principal, and be deemed obligatory. Before the execution of a policy of insurance the power and authority of a local.
As there is no matter of fraud or imposition involved, the court may properly presume that (he plaintiff understood the plain and positive terms of its agreement in the policy, and well knew that its failure to comply with its promissory warranty would at once avoid tiu; policy, and relieve the defendant from liability. It also knew from the express provisions of the policy how to obtain a modification of ibis warranty by applying to the defendant, and paying an additional premium for an increase of hazard on the risk to be incurred by the use of gasoline. The fact that Mr. Buxton knew that some time subsequent l to the date of policy gasoline fixtures had been placed in the laundry building, and were kept in operation for several months, did not waive the obligation imposed by the promissory warranty, and in no respect ratified by implication the unauthorized act of Ihe plaintiff. By the express terms of tin; policy the local agent had no power and authority to change the definite agreement of the parties otherwise than as provided in the policy; and certainly no change of such agreement can be implied which is wholly inconsistent with and repugnant to express stipulations. Acquiescence and waiver are always matters of fact that arise from proof of positive knowledge, or acts done by agents within the proper scope of their agency. There is no evidence tending to show that Mr. Buxton, by any direct promise or act, induced the plaintiff to keep and use gasoline on the insured premises under the belief that its promissory warranty was not strictly obligatory, or would be waived or changed otherwise than as provided for in the policy. From Mr. Buxton's high reputation for integrity, intelligence, and practical business qualifications, we certainly cannot reasonably infer that his mere silence and nonaei ion as local agent of defendant were calculated or intended to inure to his benefit as a stockholder in the plaintiff company.
The counsel of plaintiff further insisted that, as the defendant, under the terms of the policy, had the right to cancel the contract for any unauthorized or unapproved act on the* part: of the plainiiff, honesty and fair dealing required the defendant to promptly cancel
After hearing the opinion of the court, the plaintiff’s counsel ashed leave to take a nonsuit, and judgment of nonsuit was entered of record.