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
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
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.