Majority
p. 443Louis Kunzze, plaintiff and respondent, vs. The American Exchange Fire Insurance Company, defendants and appellants. (Before Robertson, Ch. J., and Monell and Garvin, JJ.) Heard October 13, 1864; decided October 29, 1864.
Headnote
1. A policy of insurance upon merchandise continues in force so long as the goods remain in the building specified therein, during the time it has to run, unless the contract is modified by the assent of both parties. Insurers who are bound' by the terms of the policy, for a loss occurring during the time covered by it, if they claim any variation of their original responsibility by a new agreement, must establish it by clear and indubitable evidence.2. A party insured being about to remove his stock of goods to another store, applied, by his agént, to the insurers to procure from them an ordinary transfer of the policy on the goods from the old to the new store. The secretary of the insurers told the agent, who described the property to him, to “let the policy remain as it was,” and when it expired “ it (meaning the premium) will he less than noW.” The agent, who left the policy with him, promised to call for it, later in the day, but failed to do so. Befpre the goods were removed from the original store, a loss by fire occurred.
JBeld that there was no valid agreement varying or displacing that contained in the policy; and that the insurers were liable, under such policy, for the. loss.
Appeal from a judgment entered upon the verdict of a jury. The action is on a policy of insurance covering a jeweler’s stock, fixtures and tools, at Tompkinsville, Staten Island. The risk was from May 1, 1862, to May 1, 1863, and the fire occurred Tuesday night, March 24, 1863.' Shortly before the fire, the plaintiff hired another store at Stapleton, with the intention of removing there, and had packed up his stock of goods for that purpose, on the 23d of March, hut was delayed by the mechanics. A day on two before the fire he informed Mr. Diederick, the agent who had effected his insurance, of his intention, and asked him if it would he necessary to notify the company, or to have his policy transferred. Mr. Diederick said he would take the policy to the company, which he did on the 23d of March, telling them the plaintiff “ wanted to remove his stock to Stapleton,” and “ gave them a description of the building,” leaving the policy with them. The plaintiff
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called for it the day after the fire, hut could not get it, and it was kept by them until the second day, when the secretary, Mr. Bates, brought it to the island, with an indorsement of transfer, made by the defendants’ secretary, as follows : “ Transferred to cover similar property contained in the brick building, part dwelling and store, (hazardous,) situate on the west side of Bay street, near Gore street, Stapleton, S. I.” and on the same day, March 23, a note of the transfer was made on the defendants’ books. .
On the trial the court submitted the questions of fact 'to the jury, but withdrew from their consideration the defense that the policy had been transferred to another building, and the counsel for the defendants excepted. The jury rendered a verdict for the plaintiff, upon which judgment was entered, and the defendants appealed. No motion for a new trial was made at special term, nor did the court direct that the exceptions be heard in the first instance at general term.
John S. Jenness, for the appellants.
I. The insurance broker, Diedrick, was duly authorized by the plaintiff to procure the transfer of March 23d. The testimony of Diederick establishes that authority. Nor is the testimony of the plaintiff, when carefully considered, in conflict with Diederick’s on this point. The least favorable ruling to which the defendants were entitled was, therefore, that the question of authority in Diederick to effect the transfer should be submitted to the jury; the refusal of the court below to submit that question to the jury was erroneous.
II. The assent of the company to the requested transfer is sufficiently evidenced by the indorsement made on the policy, nor was any question made at the trial upon the sufficiency of the evidence on that point. At all events, the indorsement made by the secretary in the usual course of business, and at the company’s usual place of business, and entered in the company’s books in the absence of the president, was prima facie sufficient evidence of the company’s assent to the transfer, even though the secretary’s act had not been shown to
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have been subsequently approved of by the president. (Angell on Fire and Life Ins. § 217. Conover v. Mutual Ins. Co., 1 Comst. 290. Bodle v. Chenango Mut. Ins. Co., 2 id. 53.)
III. The refusal of the court to permit the defense of the transfer to go to the jury, on the ground that there had not been a delivery of the transfer sufficient to bind the plaintiff, was erroneous, (a.) No delivery whatever of the transfer is required by law to consummate the contract of transfer. The mere making, out either of a policy of insurance or a transfer of it, and the entry of it in the underwriter’s "books, after the terms are agreed on by all the parties, makes a complete contract between all parties, although the policy or transfer is not delivered. And the underwriter holds the policy as the bailee, of the assured. (Kohne v. The Ins. Co. of North America, 1 Wash. C. C. R. 93. Perkins v. Washington Ins. Co., 4 Cowen, 646. McCullock v. Eagle Ins. Co., 1 Pick. 278 . Loring v. Proctor, 26 Maine Rep. 18 . 1 Duer on Ins. p. 66. Lightbody v. North American Ins. Co., 23 Wend. 18 . Angell on Ins. § 33. Hamilton v. Lycoming Ins. Co., 5 Barr, 339. Andrews v. Essex F. & M. Ins. Co., 3 Mason, 6.) (b.) In the present case, there was some evidence of a delivery of the transfer, as it was put away for the plaintiff.
IV. The contract of transfer of March 23d having thus been made by the plaintiff’s authority, and assented to in a binding form by the defendants, was one which absolutely removed the protection of the policy from the plaintiff’s goods, while in the store at Tompkinsville, forever after. And the circumstance that the goods had not been removed from that store at the time of the fire, ought not to invalidate the contract of transfer of the policy. The ruling of the court to the contrary of this proposition was erroneous.
L. C. Clark, for the respondent.
I. The judge properly withdrew from the jury the defense that the policy was transferred to another building.
(1.) The insurance was on personal property at Tompkins-ville, and did not expire jintil May 1, 1863. No application
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was made to the company to have the risk discontinued before removal, but the application was solely for their consent to the removal of the goods to Stapleton, and the continuance of the insurance on them there after such removal. The company, therefore, had no right to make any other indorsement of transfer.
(2.) There was no consideration for the agreement to transfer the risk to Stapleton, until the insured property was removed. The company had agreed to insure the goods at Tompkinsville until the 1st of May, and the only consideration for the alteration of that contract was the transfer of the property. Until then the original agreement was in full force.
(3.) The indorsement on the policy had never been delivered to the plaintiff, or accepted or approved by him, and therefore it had no binding effect. It was clearly his intention not to have the policy transferred until his goods were removed, and if the company indorsed a'different transfer, it was not binding upon him until accepted or ratified by him.
(4.) There is no evidence that the book-keeper who transferred the policy was authorized to do so.
II. If the court was right in withdrawing that question from the jury, it properly refused to submit to them the question whether the plaintiff conferred sufficient authority upon Diederick to effect a transfer of the policy.
By the Court,
The plaintiff’s, stock of goods, insured by the defendants, remained so under the original policy of insurance, in the original building, until the expiration of the risk, or the contract was modified by the assent of both parties. In regard to such modification, Diederick, the supposed agent of the plaintiff, testified, on his direct examination, that when he brought the original policy to the office of the defendants, to procure a transfer of it, he described the property to their secretary, who asked if he would wait for the policy ; to which he said he would stop for it when going to the five o’clock (p. m.) Staten Island ferry boat; but he never stopped for it. On cross-examination, he stated
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that he told the secretary the plaintiff wanted to remove his stock to Stapleton. Such secretary replied, “ Let the policy remain as it is, and when it expires, it will he less than now telling him “not to change the risk ; that the premium would be less on the ne'vfr building.” The book-keeper of the defendants (Bates) testified that Diederiek said the plaintiff “ was going to remove on that day, and he did not know but he was moving then, and wanted the policy transferred to cover the goods in the new building, and would be back in an hour to take it.” This, certainly, did not constitute either a fixed agreement, or an authority to the defendants’ agents to write what new agreement they pleased on the policy. It was important for the plaintiff to have inserted in the modification of the old agreement the “permission,” which the book-keeper (Bates) testified was inserted by the defendants, sometimes in what they called transfers, when the stock to be transferred was large, so as not to be capable of being removed in a day, or when the fact is specified. Such permission authorized the removal of the stock to the new building, and continued the insurance. It would have been a piece of gross carelessness on the part of Diederiek to have accepted such transfer without such qualification, when he did not know, as he acknowledged, where the goods were. A transfer, without such continuance, was equivalent to a new policy of insurance, and the request for such transfer, without such continuance, was equivalent to an application for it, to notice of the acceptance whereof, by the company, tire plaintiff or his agent was entitled. They never stated to such agent whether they would make such transfer with or without such permission. They did nothing to bind themselves, nor did they agree to make the change before the policy was, with the transfer, to be redelivered, and might have delivered it back without any indorsement ; and so not have been bound at all. The terms of the modification of the contract could not be settled until the form of transfer was assented .to by both parties ; and it is the duty of the defendants, being bound by the terms of the original written contract for the loss, to make out by the clearest evi
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denee an irrevocable change of responsibility. There was nothing said or done on the occasion to have prevented Diederick, if he had returned, as he promised, to have repudiated the transfer, on account of the absence of the qualified continuance of the old policy until the removal was complete.
Judgment affirmed.
Cases cited
- Lightbody v. North American Insurance 23 Wend. 18 p. 445