Whitaker v. Farmers' Union Insurance, 29 Barb. 312

Whitaker v. Farmers' Union Insurance

29 Barb. 312 | N.Y. Sup. Ct. | 1859

By the Court, Balcom, J.

The plaintiff’s application for insurance was dated the 28 th day of March, 1857, and .the agreement to insure was made on that day; but the $36.50 premium, agreed to be paid for the policy, was not then paid, although the receipt taken by the plaintiff of the defendants’ agent states that it was then paid. The receipt states that the policy was to take effect on the day above mentioned, at noon. The property that the defendant agreed to insure was a house and the furniture in it. The same burned in the night of the 7th of April, 1857. The plaintiff by his agent, Hotchkiss, paid to the defendants’ agent the premium for the insurance on the 8th of April, 1857, without • disclosing the fact that the house and furniture had been burned; and the defendants' agent, in ignorance of that fact, then sent - the plaintiff’s application for insurance, and the $36.50 premium to the defendant; and the defendant immediately forwarded a policy in due form, in accordance with the application, to *314its agent, for the plaintiff. The policy insured the house and furniture from noon of the 28th day of March, 1857. The defendants’ agent learned of the burning of the house and furniture before he received the policy, and refused to deliver it to the plaintiff. He returned it to the defendant, and tendered back the premium to the plaintiff, who refused to take it.

I have no doubt but that the policy would have been delivered to the plaintiff, and been regarded by the defendant as binding from noon of March 28th, 1857, if the house and furniture had not been burned in the night of the 7th of April. And had it been delivered, it would have been valid from the time it was made to take effect. (Hallock v. The Commercial Ins. Co., 2 Butcher’s N. J. Rep. 268. 4 Cowen, 645.) The defendants should not he permitted to say the policy would have been good from the 28th of March, 1857, if no fire had occurred, but is void because there was a fire on the 7th of April of that year, and be allowed to repudiate its agreement to insure. When the defendant accepted the premium, and forwarded the policy to its agent, the agreement to insure was complete and ratified as of the 28th of March, 1857; and the policy became the property of the plaintiff. (2 Dutcher, 278, 279, and cases there cited.)

The judge before whom the action was tried has found that there was no fraud or concealment on the part of the plaintiff ; and I think the plaintiff was under no legal or moral obligation to inform the defendant or its agent of the fire, before or at the time the premium was paid; for the agent had received the application for the insurance and given the plaintiff credit for the premium, according to the finding of the judge upon the, evidence. (2 Dutcher, 274.) The plaintiff was entitled to have his application for insurance acted upon by the defendant, after the fire, in precisely the same manner that it would have been if no fire had occurred.

One of the conditions of the policy issued by the defendant for the plaintiff was, that no insurance should be considered *315as binding until the actual payment of the.premium; and for this reason the defendants’ counsel insists that the agreement to insure, made by the agent of the defendant, was invalid. Now granting that the defendant may have refused to fulfill the agreement on that ground, (as to which I will express no opinion,) it did not do so, but ratified it by accepting the premium and issuing the policy, which insured the house and furniture from the time the agreement was made. And, as has already been seen, the plaintiff was not bound to inform the defendant or its agent that his house and furniture had been burned; and that an agreement to insure from a time past is valid. It follows that the defendant was properly adjudged liable to specifically perform the agreement to insure by delivering the policy to the plaintiff, and to pay the damages the plaintiff sustained by reason of the fire.

[Chenango General Term, May 10, 1859.

Mason, Balcom and Camp-

bell, Justices.]

The defendants’ motion for a new trial should therefore be denied, with costs.

Campbell, J., concurred in the above opinion.

Mason, J., expressed no opinion in the case.

New trial denied.