Whited v. Germania Fire Insurance

Headnote

Policy of insurcmce — condition of —power of agent to waive.

The defendant issued to the plaintiff a policy of insurance .upon a frame building owned by him, the policy providing that it should be void if any change or transfer in title or possession should take place without the consent of the company indorsed upon the policy, or if the interest of the assured, as owner, mortgagee, devisee, or otherwise, was not truly represented to the company and stated in the policy; it also provided that the use of general terms, or any thing less than a distinct, specific agreement, clearly expressed and indorsed on it, should not be construed as a waiver of any printed or written conditions.

The plaintiff sold the house and took back a purchase-money mortgage. The defendant’s agent thereafter received the annual premium from and gave a receipt therefor to him, being aware of these facts and understanding that he intended to insure his interest as mortgagee.

Held, that in an action on the policy the jury might infer an agreement by the agent to insure plaintiff’s interest as mortgagee, and a waiver of the requirement that the plaintiff’s interest, as mortgagee, should he endorsed on the policy.

The agent was authorized to solicit insurance, issue and renew policies, note the changing of title, and to collect and pay premiums.

Held, that this evidence justified the conclusion that the agent had authority to waive, and by his acts had waived the condition above referred to, and that plaintiff was entitled to recover.

Appeal from judgment in favor of the plaintiff entered on a verdict rendered at the Oswego Circuit, before Mr. Justice Morgan.

Action on a policy of insurance for $Y00, issued by defendant to plaintiff, on a frame building occupied as a dwelling and grocery. The policy was issued October 11, 1869, and was continued in force by annual renewals till October 11, 18Y3. The policy contained the following conditions: “ If the property be sold or transferred, or any change takes place in title or possession, etc., * * * without the consent of the company indorsed hereon, or if the interest of the assured in the property, whether as owner, * * * mortgagee, lessee, or otherwise, be not truly stated in this policy, the policy shall be void.” “ If the interest of the assured in the property be any other than the entire, unconditional and sole ownership of the property, for the use and benefit of the assured, * * * it must be so represented to the company and so expressed in the written part of this policy, otherwise this policy shall be void.” “ The use of general terms, or any thing less than a distinct, specific agreement, clearly expressed and indorsed on this policy, shall not be construed as a waiver of any printed or written condition or restriction therein.” When the policy was issued, the plaintiff was the owner of the premises, and the buildings insured were described in the policy as his. In December, 18YO, the plaintiff agreed verbally, to sell the house and lot to John Donohue, and on November 1Y, 18Y1, in consummation of the agreement, he deeded the property to Donohue and took back a bond and mortgage thereon for $1,500 purchase-money. No notice of the transfer, or of plaintiff’s interest as mortgagee was stated in the policy, or indorsed on it. At the trial, the judge submitted to the jury, upon conflicting evidence, the question whether the local agent of the defendant at Oswego, received from the plaintiff the renewal premium and paid it over to the company, after being notified by the plaintiff that he had deeded the property and taken a mortgage, and whether it was understood by the agent that the premium was paid by the plaintiff to renew the policy for his benefit as mortgagee. The jury found a verdict for the plaintiff for the amount of the policy, with interest from the time of the loss.

The defendant’s agent, at Oswego, had full power and authority to continue the insurance on the plaintiff’s interest as mortgagee, either verbally or by making the indorsement of the change of title upon the policy, or to waive that condition of the policy requiring the indorsement and consent to the transfer verbally. (Angelí v. Hartford Fire Ins. Co., 59 N. Y., 171 ; Pechner v. Phoenix Ins. Co., 65 id., 195 ; Rhodes v. Railway Passenger Ins. Co., 5 Lans., 71 ; Ellis v. Albany City Fi/re Ins. Go., 50 N. Y., 402 ; S. O. reported Gen. T., 4 Lans., 438 ; Fish v. Lmerpool, London and Globe Ins. Go., 44 N. Y., 538 ; Trustees of First Baptist Church v. Brooklyn Fire Ins. Go., 19 id., 305; Sheldon v. Atlantic Ins. Go., 26 id., 460; Bochen v. Williamsburgh Ins. Go., 35 id., 131; Pitney v. Glen’s Falls Ins. Go., 65 id., 6; Shearman v. Niagara Fire Ins. Go., 46 id., 526; Pechr ner v. Phoenix Ins. Co., 6 Lans., 411 ; Whitwell v. Putnam Ins. Go., 6 id., 166.) The condition in a written instrument not under seal, requiring an act to be performed or evidenced by a statement in writing, may be waived by parol, and a parol waiver of a similar condition of a sealed instrument may be upheld in equity on the theory of an equitable estoppel. (Pitney v. Glen’s Falls Ins. Go., 65 N. Y., 6 .) The issuing and delivering to the plaintiff of the certificate on the 11th day of October, 1872, after notice of the change of his interest in the premises, and saying to him that it was all right, was in law an insurance of his mortgage interest and a waiver of the condition of the policy requiring it to be in wilting and indorsed thereon. (Pechner v. The Phoenix Ins. Go., 6 Lans., 411 , 417; affirmed, 65 N. Y., 195 ; Shearman v. Niagara Ins. Go., 46 id., 526; Parker v. Arctic Fire Ins. Go., 1 N. Y. S. O. R. [T. & 0.], 397; affirmed, 59 N- Y., 1 .)