95 Neb. 774 | Neb. | 1914
The plaintiff was the owner of a stock of general merchandise in the town of Anselmo, Custer county, which was destroyed by fire on the 22d day of April, 1911. He claimed that the defendant insurance company had insured the property against loss by fire in the sum of $4,000, and brought this action in the district court for Custer county to recover that insurance. The cause was tried to the court without a jury, and general findings for the plaintiff and judgment entered thereon for $4,0.00, and interest and costs. The defendant has appealed.
The allegation of the petition was that one, J. C. Moore, was the agent of the defendant company, and was duly authorized in that regard, and that on the 18th day of April, 1911, the plaintiff applied to the said Moore, as such agent, for insurance on the said property; that the “said defendant by its said agent, in consideration of the sum of $80, orally agreed to become an insurer of said stock of merchandise for the sum of $4,000 for the period of one year, beginning on the 18th day of April, 1911, and ending on the 18th day of April; 1912, at noon, and orally agreed to make and deliver to plaintiff a policy of insurance for the sum of $4,000 in the usual form of policies issued by the 'defendant.” It was also alleged that the plaintiff offered to pay the defendant the specified premium, and that the said agent of the defendant informed him “that he might have 30 days from the date of said contract in which to pay said premium; and plaintiff alleges that it is the custom and habit of said company to allow 30 days in which the insured may pay premiums for contracts of insurance entered into with it; that within 30 days after April 18, 1911, and before the loss hereinafter mentioned occurred, plaintiff tendered defendant the full amount of said premium, but defendant wrongfully refused the same, an'd still refuses the same, claiming that it is not obligated by said contract;” that within the agreed time the plaintiff tendered the defendant the full amount of the said
This being an action at law, the findings of the trial court are entitled to the same consideration in this court as would be given the verdict of a jury, and such finding will not be set aside where the evidence is substantially conflicting, unless upon the whole record it appears it is clearly wrong.
On the 19th day of April, Mr. Sage, the manager of the defendant company, wrote a letter to Mr. Moore calling the agent’s attention to the expiration of plaintiff’s policy on the 18th, and saying: “Thinking possibly you may have overlooked it, we thus remind you in order that assured may not unwittingly go without insurance.” He also stated: “Rate is now $4.90 as per rate book, of Nov. 12, 1910.” Mr. Moore answered that the risk was a good one, and the rate agreed upon was the same as it had been. Again, on the 22d, Mr. Sage wrote Moore that the rate was too low, saying: “We consider the former rate of 2 per cent, entirely inadequate and prefer to accept no liability unless a rate of 3% per cent, can be secured, and we are holding the application in this office awaiting your early advices along this line.” Mr. Moore wrote several letters describing and strongly recommending the risk at the rate agreed upon by him, and it does not appear that the con
The judgment of the district court is
Affirmed.