76 Wis. 592 | Wis. | 1890
The plaintiff testified, in effect, that after having received the letters dated December 28, 1887, and January 17, 1888, set forth in the foregoing statement, and the applications therein mentioned, and on January 23, 1888, in answer to said letters he sent forward to William E. Smith Company the application for the renewal of his policy, and that on or about January 28, 1888, he received from them the policy in suit, inclosed in the letter dated February 1, 1888, mentioned in said statement. The answer concedes that in Januaryr, 1888, the plaintiff held a policy of insurance issued by the defendant upon the property in question, which was about to expire. It is therein alleged, however, that that policy by its terms expired March 1, 1888, and that the policy in suit was issued February 1, 1888, under the mistaken apprehension that such former policy expired at that time. But it is conclusively proved by such former policy itself in evidence that by its terms it expired February 1, 1888. The answer concedes that on or about February 1, 1888, the plaintiff delivered to the defendant’s agent the premium note mentioned in the complaint, and that the defendant, by its agents, thereupon issued to the plaintiff the policy in suit, containing the recitals mentioned in said statement. With these concessions it is useless for the defendant to deny the authenticity of the letters dated December 28, 1887, and January 17, 1888, soliciting the plaintiff to renew his policy, and containing the application which was signed by the plaint
The answer denies any and all liability upon the policy. It also denies that the plaintiff ever paid, or the defendant ever received, the $87-50 as premium, recited in the policy as having been paid, or any .sum whatever, or any consideration for the policy, except the premium note mentioned; and it is claimed that the policy was void by reason of such failure to pay such cash premium. In the letter received by the plaintiff from the defendant, dated January 17,1888, set forth in the foregoing statement, he was informed, in effect, that upon the receipt of the "application duly signed by him the defendant would return to him the premium note given for the old policy, and would render a statement showing the amount of unearned premium due to him thereon, and would credit the amount thereof on the premium of the new policy. That letter was an express acknowledgment on the part of the defendant that it had, or would have at the expiration of the old policy, a certain amount of money belonging to the plaintiff, without stating what the amount was. It also Contained a promise on the part of the defendant that it would render to the plaintiff a statement showing such amount, and would credit the same upon the new policy. Presumably the defendant did so credit such amount at the time of issuing the new policy. The- plaintiff testified that no such statement was ever received by him from the defendant, or William E. Smith Company, or anybody else; that prior to the fire he did not know anything about how the account stood between him and the company, nor the amount of such unearned premium; that neither the defendant nor William E. Smith
From the evidence in the record we cannot say it was error to submit to the jury the question whether the dividends on the old policy equaled or exceeded the cash premium named in the new policy; or the question w'hether the plaintiff had been misled by such letters and the policy, and thereby induced to believe that the cash premium on the new policy had been paid by the application of the dividends due him on the old policy; or the question whether the plaintiff had good reason to believe from such former dealings and letters that the defendant would send him a statement of the amount due him for such dividends on the
The answer alleges that the defendant directed the cancellation of the policy a few days after it was issued, and gave notice of such intention to the plaintiff, February 5, 1888. The plaintiff denies any notice or information, directly or indirectly, from the company, prior to the fire, of any cancellation of the policy or an}' claim or desire to cancel the same; and there is no evidence in the record, and no competent evidence offered, proving or tending to prove such cancellation or notice. ‘Certainly the mere impression in a letter boot, kept in the office of the defendant’s agents, purporting to have been written by one of their clerks not testifying, and without any evidence as to such letter ever having been mailed or directed, was not competent to prove such cancellation, especially as against the plaintiff’s denial.
The plaintiff, having actual knowledge of the cost of the building and what it was worth, was competent to testify regarding the loss, notwithstanding his admission that his estimates were based in part upon figures made by experts, and hence there was no error in refusing to strike it out.
The court properly excluded a question put to the plaint
By the Court.— The judgment of the circuit court is affirmed.