J., and Strong, Fournier, Henry and tion, which right T., at the time of the application, had availed himself of by paying back to S. a part of the money advanced, leaving still due to S. a sum of $1,510.
Subsequent to the application, and after some correspondence, the respective interests of T. and S. in the property were fully explained to the appel- Co.
lants through their agents. Thereupon a transfer for-(the amount being in blank) was made to S. by T. and accepted by the appellants. The action was for $3,280, the amount of insurance on the buildings and effects.
Held,-That at the time of the application for insurance T. had an insurable interest in the property, and as the appellants had accepted the transfer made by T. to S., which was intended by all parties to be for $1,510, the amount then due by T. to S., the latter was entitled to recover the said sum of $1,510. 2. That S. having no insurable interest in the movables, the transfer made to him by T. was not sufficient to vest in him
.'s rights under the policy with regard to said movables (1).
APPEAL from a judgment of the Court of Queen's Bench for Lower Canada (appeal side).
This was an action to recover $3,280 from the appellants, under a policy of insurance issued by them in favor of one Thomas Thomson.
The facts of the case, as set forth in the pleadings, are briefly as follows
The plaintiff's (respondent) declaration sets forth, that on or about the 25th of April, 1876, Thomas Thomson, of the Parish of St. Brigide, in the County of Iberville, made a contract of insurance in the said Parish of St. Brigide, with the defendants (appellants) to insure against fire divers buildings and their contents for a total sum of $3,280; that a policy of insurance was issued by appellants to the said Thomas Thomson, which covered the said buildings and effects; that on the 23rd of August, 1876, the said Thomas Thomson transferred to respondent the said policy of insurance and his interest therein; that the appellants accepted of this transfer ; that the said buildings and effects were (1) Art. 2482 C. C. L. C.
destroyed by fire on the 27th September, 1876; that the loss suffered by the insured, in consequence of the fire, pellants of the fire, and fyled with the company a sworn statement of the said loss.
The appellants fyled several pleas, but on this appeal relied on the third plea setting forth that Thomson obtained said policy of insurance on the representation that he was proprietor of the said immovable property insured, whereas, in truth, he was not the proprietor thereof, and said policy was void ab initio; that on or about the 25th of August, 1876, said Thomson transferred said policy to respondent, whom said Thomson represented to be the mortgagee of said property for $1,000; but, inasmuch as said policy was void ab initio, no interest or title was transferred to respondent; that, if said policy had any effect (which appellants denied) no interest or benefit could accrue or be transferred to respondent as regards the movables covered by said policy, inasmuch as respondent had no interest in said movables, respondent's mortgage, if any existed, applying only to the immovables, and the cash value of the immovables was not more than $900, and by the terms of said policy appellants would only be liable for twothirds of that sum, viz., $600; that, in any event, respondent had no claim or right to recover from appellants the value of the contents of stables Nos. one and two, and that of the sewing machine mentioned in said policy, inasmuch as respondent had furnished no proofs of the contents of the said two stables, nor of the value thereof; nor of the value of the sewing machine alleged to have been destroyed by the fire in question.
The respondent replied that Thomson, in stating in his application that he was proprietor of the buildings insured, and that they were mortgaged for $1,000, stated what was correct; that although said Thomson had sold. the property to respondent 5th Dec., 1871, he did so subject to redemption, as appeared by a contre letire fyled; that he paid no rent therefor; that the transfer respondent was made long befoie the fire, and with the consent of the company, and that appellants had no interest to plead that Thomson was not proprietor at the time the insurance was effected; that a regular claim was made out in one of the company's blanks; that this claim was correct and made in good faith; that respondent admitted that he had no right to claim for the contents of the two stables; that it was by error that a demand had been made for them in the present action, and respondent made the same admission regarding the sewing machine, excepting $5 as part of the value of it.
By the judgment of the court in the first instance, the company was condemned to pay $140, the value of a part of the movables insured, namely, $60 for a reaper and mower, and $80 for a threshing machine; this court specially holding that the insurance on the immovables was void. The reasons for so holding being " that Thomson must be held under his application and the policy to have so warranted that he was possessor and proprietor of the buildings insured; that so far from that condition warranted being true, he (Thomson) was not the owner of the property and buildings alluded to, either at the date of the insurance or of the fire, and so the policy, as regards said buildings, was by its proper conditions void; and that the company never took Thomson to be other than proprietor of the buildings insured, and had no knowledge before the fire of Thomson's sale to plaintiff.
The Court of Queen's Bench, by its judgment, held that the plaintiff (Sheridan) should recover for the value of the immovables, but that he had no right to recover the insurance on the movables, as he (Sheridan) had COURT Or, CANADA.
no insurable interest thereii.
It is from this judgment is7 of the Court of Queen's Bench that the present appeal was taken.
Mr. Bethune, Q. 0, and Mr. Hatchinson for appellants: Im. By the written application made and signed by Thomson, and b9 the policy, any misrepresentation of facts in the application made by Thomson amounts to a breach of warranty, and is fatal to any claim of the insured.
That Thomson, in his application, misrepresented the facts, and made statements therein which were entirely untrue, is very evident. In his application he states that he is the owner of the property insured in fee simple, or in his own right, and that the property in question was mortgaged for $1,000.
[The learned counsel then contended upon the facts of the case that it was impossible to avoid the conclusion that Thomson was guilty of gross misrepresentation ]
Then it is contended that the sale to respondent was subject to a right of redemption.
The law on this point is very clear, and is laid down in Articles 1549 and 1550 0. C. L. which declare that the Court cannot extend the stipulated term for redemption.
As to the movables respondent had no insurable interest and cannot recover on the transfer.
See Art. 2472 L.
The learned counsel also referred to Art. 21-5 and 2187 0. L. 0.; Hazard v. Agricultural Insurance Co. (1); Wood on Fire Insurance
Mr. Pagnuelo, for respondent:
Contended that there was no misrepresentation, and that the company was made aware of the real interest of both Sheridan and Thomson in the property, and with this knowledge accepted the insurance and issued Tas the policy in the form they adopted.
As to the transfer with regard to the movables, that the transfer was made as a collateral security for a .. C debt, and that in such a case the transferee had an insurable interest in the object of the policy, and cited White v. Western Insurance Co. (1); Troplong vo. Mandat (2) ; and Fitzgerald v. The Gore Mutual Insurance Co (a).
Mr. Bethune, Q. C., in reply.
C J., concurred with Fournier, J.
J..- I am of opinion that the judgment of the Court of Queen's Bench ought to be affirmed for the reasons given by the Chief Justice of that Court, and also for those expressed by my brother Fournier, in whose judgment I concur.
Le 25 avril, 1876, I'appelante a 6mis en faveur de Thomas Thomson une police d'assurance au montant de $3,280, sur certaines batisses et leur contenu, d6truits par un incendie qui a eu lieu le 27 septembre de la m~me ann6e.
Du consentement de la compagnie, cette police fut ensuite transport6e ! 1'intim6 Sheridan, qui en a r6clam6 le montant par son action en cette cause. La compagnie lui oppose pour moyens de d6fense: lo. Nullit6 de la police, parce que le billet promissoire donn6 pour la prime n'avait pas 6t6 pay6 & son 6ch6ance.
2o. Que Thomson avait tromp6 la compagnic sur la valeur et le titre de propri6t6 des bAtisses assurses. 3o. Qu'il n'6tait pas propri6taire des bAtisses assur6es en son nom.
4o. Que l'incendie des dites bAtisses avait 6t6 caus6 orAW par sa n6gligence.
La compagnie peut, d'aprbs ses conditions, accepter un billet promissoire pour le paiement de la prime d'assurance, mais A d6faut de paiement de tel billet A son Fournier, J. 6ch6ance, il est stipul6 que la police devient caduque.
Par une autre condition de la police, il est d6clar6 qu'il n'est pas permis aux agents de donner leur consentement A aucun transport de police ni de dispenser
(waive) de l'ex6oution d'aucune stipulation on condition y contenue. Le billet que Thomson avait donn6 pour la prime tait dhi depuis deux mois lorsqu'il a t6 pay6. Patterson, 1'agent de la compagnie A Montreal, en a requ le montant sans faire aucune observation sur
1'expiration du d~lai ni stir la condition de d6ch6ance en pareil cas. L'argent ainsi pay6 a t6 ensuite requ par le bureau principal de la compagnie A Ottawa. La compagnie n'a jamais offert de rendre ces deniers, ils sont encore dans sa caisse.
Sous ces circonstances il est impossible de ne pas consid6rer la compagnie comme ayant donn6 son consentement A l'ex6cution d'un contrat qu'elle aurait p-i consid6rer, il est vrai, comme ayant cess6 d'exister faute de paiement dans le dlai fix6. Mais pour se pr6valoir de ce d6faut, il
6tait d'abord du devoir de son agant A Montrial de ne pas recevoir les deniers, puis lorsqu'ils furent plus tard transmis an bureau principal, la compagnie elle-meme aurait dh r6pudier I'acceptation qui en avait 6t6 faite par son agent. Rien de cela n'a fait.
O'est avec les deniers dans ses mains que la compagnic se pr6sente on cour pour se plaindre de n'en avoir pas 6t payee. Il n'est pas surprenant quo cctte objection ait 6t0 rejethe comme futile par les deux cours qui out d6jA t6 appel6os A se prononcer sur cette cause.
Lors de l'argument, cette cour a t du mome avis, et c'est mon opinion que le d6faut d'avoir offert de rendre les deniers aussitat que le paiement en est parvenu a sa connaissance, doit n~cessairement faire pr6sumer le I'.co. consentement do la compagnie l'excution du contrat d'assurance.
Fournier, J. Quant a 1'exag6ration de 1'6valuation des propri6t6s, i serait injuste d'en rendre Thomson responsable, car elle n'a pas t faite par lui, mais par Valois, 1'agent do la compagnie.
Il 6tait tout naturel pour lui de croire qu'une 6valuation ainsi faite serait de nature a donner plus de satisfaction A la compagnie que celle qu'il pourrait faire lui-m~me. Aussi, s'est il content6 d'adopter celle qui a t6 faite par Valois.
y a en erreur dans cette 6valuation, mais il n'y a pas eu dessein de tromper. La compagnie no se plaint pas qu'il y a en pour cela une entente frauduleuse entrO Thomson et Valois, et elle n'a pas tent6 d'en faire la preuve.
L'objection la plus s6rieuse est celle faite au sujet du droit de propri6t6 dans les bAtisses assur~es. Dans son application pour obtenir une police d'assurance, Thomson 'est d6clar6 le propri6taire des immeubles y d6sign6s, et il a ajout6 qu'ils 6taient affect6s par hypothbque au montant de $1,000. O'est sur ces dclarations que la compagnie consid~re fausses et comme ayant t6 faites dans le but de la tromper, qu'elle s'appuie principalement pour refuser le paiement r6clam6. Ces d6clarations ne sont certainement pas exactes; mais l'explication quo 77tomson en a donn6e fait voir que s'il 6tait en erreur sur la nature de ses droits concernant les immeubles en question, il n'agissait nullement avec l'intention de commettre une fraude au d6triment de la compagnie.
Voici, d'aprbs les faits en preuve, quelle 6tait sa position :- En 1871, Thomson, se trouvant endett6 envers phlsieurs personnes, et, d6sirant les payer toutes pour n'avoir plus affaire qu'A un seul cr6ancier, fit avee 1'ntim6 Sheridan un arrangement par lequel celui-ci s'engagea d'avancer les deniers n6cessaires pour 1'exi&ution de ce projet. Les parties donnbrent A cette convention . ]a forme d'un acte de vente par lequel Thomson SAN. vendait A Sheridan d6cembre 1878) sa propri6t6 de Founier, J. neuf arpents de front sur trente de profondeur pour $4,000 que ce dernier devait, dans le d6lai de trois ans employer A payer les hypothbques affectant la propri6t6 vendue,-tenir compte des paiements faits et remettre la balance au vendeur. Sheridan ne devait prendre possession que d'une partie de la propri6t6 vendue, savoir: les deux arpents adjoignant la propri6t6 de F. X. Paquet. Le vendeur Thomson devait demeurer et est de fait toujours demeur6 en possession du reste de la propri6t6, A condition de payer un loyer de $400 par ann6e, et de remplir certaines autres charges.
Le m~me jour Sheridan signa une contre-lettre par laquelle, sur remboursement de ses avances, dans le d6lai de trois ans, il s'obligeait A revendre A Thomson la propri~t6 achet6e comme on vient de le voir.
Le loyer stipul6 n'a jamais 6t6 payi, et Thomson a continu6 de jouir de sa propri6t6 comme auparavant. Quelques jours seulement aprbs cette vente, le 11 novembre 1871, Sheridan a revendu, pour $2,200, deux arpents sur trente, c'est-A-dire moins du quart de la proprit6 pour le total de laquelle il avait promis de payer $4,000., Par cette vente, Sheridan touchait imm6diatement $1,200 et devait recevoir la balance de $1,000 dans un court d6lai.
rentrait ainsi trbs promptement dans plus de l moiti6 des avances qu'il avait promis de faire. .D'autres remboursements furent faits par Thomson qui, A 1'6poque de son application ne devait plus a Sheridan que $1,500.
3ien que le 4e trois ans fix6 pour le-rachAt fit alors expir6, Sheridan n'ayant manifest aucune inten- 'AH tion de 8'en tenir A la lettre du contrat de vente, ayant au contraire laiss6 Thomson en jouissance comme auparavant, il n'est pas surprenant que celui-ci se soit, , f lors de son application, ciu justifiable de se consid6rer comme le proprietaire.
L'acceptation que Sheridan a FournierJ.faite plus tard d'un transport de partie de la police d'assurance
Thomson se d6clarait propri6taire, prouve bien que telle 6tait aussi sa manibre de voir A cet 6gard.
Cependant Thomson et son fils d6clarent positivement dans leur t6moignage qu'ils ont inform6 l'agent Valois que le titre de propri6t6 6tait au nom de Sheridan, comme sdret6 du paiement d'une somme d'environ $1,000.
II parait d'aprbs la preuve qu'il y a eu entre eux un malentendu A ce sujet. Cela s'explique facilement par le fait que Thomson comprend peu le frangais et que Valois parle pen la langue anglaise. Ce dernier ayant demand6 le montant exact de la crbance de Sheridan, Thomson lui dbclara qu'il n'6tait pas alors en 6tat de le lui dire exactement et demanda A retarder 1'assurance A un autre jour afin de 'en assurer. Sur cette r6ponse Valois lai dit que ce n'6tait pas n6cessaire, et il compl6ta lui-m6me l'application. O'est sons ces circonstances que la declaration de Thomson a 6t faite et que le montant dA a Sheridan a 6 port6 A $1,000, au lieu de $1,500 qu'il 6tait r6ellement.
Si les choses en 6taient rest~es IA, on pourrait dire, sans toutefois pouvoir en rejeter la responsabilitb morale sur Thomson, quo la compagnie a 6t0 induite en erreur par ce malentendu et qu'elle 'est par cons6quent pas tenue d'ex6cuter un contrat fond6 sur l'erreur. Mais telle n'est pas sa position. L'erreur commise par l'entr6e du nom de Thomson au lieu de celui de Sheridan ayant 6t0 d~couverte, elle fut rectifibe lors du transport de la police que Thomson 4 fait 4 Sheridan, d consentement de la compagnie.
La v6ritable position des parties concernant leurs droits respectifs danS la propri6t6 en question est expos6e dans tous ses dtai's dans la correspondance 6chang6e entre Talois et Patterson, I'agent g6n6ral de la compagnie, A propos I. de ce transport
Cette correspondance 6tant de la plus haute importance pour la d6cision de cette cause, jeFournier,J. crois devoir en donner 1'analyse aussi correcte que ~ concise qui se trouve dans lea notes de Sir A. A. Dorion. As regards the ownership of the property, it is true that in his original application, 2homson represented that he was the owner of the premises which he sought to insure, while he had previously sold them to the appellant subject to a right of redemption.
This was evidently the result of a misunderstanding, and the respective interests of Thomson and of the appellant in the property in question were fully explained to the Company through its agents, before the policy was transferred, and the transfer was accepted after all the circumstances had been fully disclosed.
Yalois, in a letter of the 8th August, 1876, wrote to Patterson, the general agent of the Company at Mon treal, that the property belonged to Sheridan, and that Thomson wanted to know if, in case of fire, he would be entitled to receive the insurance without this being mentioned in the policy.
On the 14th of the same month, he again writes to Patterson that
Thomson was not the proprietor of the premises, at the time the insurance was effected; that in order to pay his debts, Thomson had previously transferred his property to the appellant, on condition that he would get it back on payment of what he owed him;
that he had already paid a large amount and expected to have his property returned to him. In this letter, Valois says: " Now these two gentlemen " (alluding to Thomson and to Sheridan), " wish to have their property insured is it necessary to make two policies, one for the buildings in the name of Sheridan, and one for the contents in the name of Thomson, or will one policy containing all the facts be sufficient? do what you think proper."
Patterson answers on the 16th: " If I understand well the position of this matter, Thomson is the owner of the real estate, but he owes something to Mr. Sheridan ; if it is so, the policy is good as it is, excepted that to enable Sheridan to claim the insurance the policy must be transferred to him by Thomson."
After indicating how tse transfer is tq be made, Patterson adds;
a This plan dispenses with the necessity of miking two policies, it will save expenses. I believe it is all that is required."
Finally, Valois writes to Patterson, on the 22nd August: "1I return the policy of Mr. Thomson after getting him to sign, and having IUs.
signed myself; the sum which is to be t ansferred is one thousand, five hundred and ten dollars ($1,510), being the amount for which the buildings are insured."
u r
It was after this correspondence had taken place, that the transfer Fournier, J. was made by Thomson and accepted by the Company. The inten. tion of both Thomson and Sheridan on the one part, and of Patterson acting for the Company on the other, was unmistakably to insure Sheridan's interest in the property described, and if after the explicit statement made by Yalois, that Sheridan owned the build. ings, and Thomson the chattel property they contained, the agent of .
the Company made a mistake by causing a tiansfer to be made by Thomson to the appellant, instead of issuing a new policy to cover Sheridan's interest in the buildings, the latter should certainly not suffer, as the Company cannot take advantage of its own agent to resist the claim of the appellant. It is to be noticed that whether the property was ineured in the name of Thomson or in that of Sheridan made no difference in the risk, since the property was all the time occupied by Thomson.
11 est 6vident d'aprbs cette correspondance que c'6tait 1'intention des parties d'assurer les int6rits de Sheridan dans la propri6t6 en question.
Si la chose n'a pas 6t faite comme elle aurait dift l'6tre au moyen de doux polices, une pour Thomson et une pour Sheridan, la faute n'en peut Atre attribu6e qu'd 1'agent de la compagnie qui n'a pas donn6 aux faits qui lui out t6 communiqu6s leur v6ritable signification. Adoptant sur ce point le raisonnement de la Cour du Banc de la Reine, je crois qu'il serait injuste de rendre Sheridan responsable de 1'erreur de la compagnie.
O'est A cette dernibre ;! en supporter les cousfquences, puisque c'est aprbs avoir 6 sp6cialement inform6e de tons ces faits qu'elle a accept6 un transport de la police dans laquelle Thomson est d6sign6 comme le propritaire. Pour cette raison le jugement accordant a l'intim6 $1,510, balance %ui lui (tait due lors du transport, devrait 6tre confirmn6, SUPREMfE COURT OF CANADA.
Malheureusement pour Thomson il s'est gliss6 dans le transport de la police une autre erreur qui, suivant le jugement de la Cour du, Banc de la Reine, doit tre fatale A ses pr6tentions de retirer sous le nom de Shevidan le surplus de la somme transport~e A ce dernier, ,. Cette erreur, aussi commise par I'agent de la comp'agnie, consiste dans l'oubli d'avoir ins6r6 dans le J. transport la somme pour laquelle la compagnie donnait son consentement, ce qui a l'effet de constituer Sheridan cessionnaire non seulement de 1'assurance sur les bAtisses, mais aussi de celle sur les meubles de Thomson.
La correspondance cit6e plus haut d6montre A l'6vidence que 1'intention de toute les parties 6tait de ne transporter A Sheridan qu'un montant suffisant pour garantir sa cr6ance.
En cons6quence de cette omission le transport se trouve 6tre de tous les int6r6ts de
Thomson dans la police. Ce n'6tait certainement pas son intention.
D'ailleurs Sheridan n'avait point dans les meubles assur6s qui 6taient toujours rest6s la propri6t6 de
Thomson, d'autre int6r6t que celui d'un cr6ancier ordinaire, dans le cas oil la balance qui lui 6tait due n'aurait p^ 6tre pay6e en vertu de son transport. II pouvait dans ce cas exercer son action personnelle sur ces meubles comme sur tous les autres biens qui res.
taient encore A Thomson, ou faire saisir entre les mains de la compagnie ce qu'elle aurait pA devoir A Thomson en vertu de cette police. Mais cet int6rt n'est pas suffisant pour rendre 16gale 1'acceptation d'un transport d'assurance.
I faut, d'apras Part. 242 C. C., pour qu'an transport soit valable que la personne A qui il est fait ait un int6r6t dans la chose assur6e, c'est- A-dire que dans le cas actuel, pour la validit6 du transport, il aurait fallu faire voir que Sheridan avait un int6rt daus les meubles en question, comme propri6taire, gagiste on usufruitier, etc. A d6faut d'un intfret de ce genre, le transport so trouve nul d'aprbs Particle du code cit6 plus haut, et cette cour doit le consid6rer comme tel.
La dernibre objection, celle par laquelle Thomson a 6t6 accus6 d'avoir caus6 'incendie par sa n6gligence, a 6t unanimement rejet6e par la Cour du Bane de la Reine. Fournier,J.La preuve 4tablit que le 27 septembre, jour de lincendie, Thomson et sa femme sont partis dans l'apr~smidi, pour aller dans une paroisse voisine visiter un de leurs enfants.
Aprbs leur d6part les deux fils de Thomson et sa fille ont aussi laiss6 ]a maison vers 6 heures du soir pour aller passer la veill6e chez des amis.
Au moment de leur d6part pour le retour ils s'aper9urent que la maison et les autres bAtisses 6taient en feu. Lorsqu'ils arriverent, elles 6taient d6jA i moiti6 d6truites.
Il n'y avait certainement rien d'extraordinaire et d'inusit6 dans l'absence de Thomson et sa famille. Ces courtes absences d'une famille entibre, a la campagne sont assez fr6quentes. Celle qui a eu lieu dans ce cas-ci ne peut 6tablir contre Thomson le fait d'une n6gligence qui le rendrait respQnsable de 1'incendie, et encore moins cr6er une pr6somption qu'il en soit 1'auteur, puisque le plaidoyer n'a pas port6 contre lui cette grave accusation.
Il y a bien quelques circonstances qui portent A croire que le feu est I'ceavre d'un incendiaire, mais rien dans la preuve n'implique Thomson comme y ayant eu la moindre participation. Telle a 6t6 1'opinion unanime de la Cour du Banc de la Reine, et c'est aussi celle que j'ai adopt6e aprbs un examen s6rieux de la preuve.
HENRY, J.
This is an action on a policy of Insurance for loss and damage by fire to a dwelling house, a barn and shed, with their contents, insured by a person named Thomson, who, subsequently, with the assent of the appellants company, assigned it to the respondent, be- " . ing, as he was shown to have been, interested in the IS. real estate covered by it.
Before determining the legal questions involved, it is necessary to look at the facts as they existed before the J. policy sued on issued.
On the 25th of April, 1876, Thomson signed a written application in which the property is described.
A number of questions submitted by the company are printed in and form part of the application; but it is only necessary to refer specifically to two of them.
One is: "Does the applicant possess in fee simple, or in his own right, and if not, who possesses ? The reply to it was " Yes."
The other is: " State if is mortgaged or otherwise affected, and if so, how, and for what amount ?" The answer is " $1,000."
It thus appears that although the first answer was incorrect, the subsequent statement that the property was mortgaged or otherwise encumbered, effectually corrected the first and clearly 9howed the state of the title, and that the party intended no misrepresentation.
He could not, therefore be said, as alleged in some of the pleas, to have falsely and fraudently made the representations by which it is sought to avoid the policy.
We find, however, that Thomson, in August following, fearing that the transfer to the respondent might affect the insurance, applied to Valois, the local agent;
and, after giving him full knowledge of the transfer and its objects, got him to communicate the same, which he did, to Patterson, the general agent at Montreal. A correspondence, commenced by a letter from
Yalois to Patterson, of the 8th August, and which terminated on the 29th of the same month, shows that the relative position of the respondent and Thomson in regard to the property was fully made known to Ten
Patterson. On the 14th Valois wrote Patterson, fully explaining the matter. On the 16th Patterson acknowledged the receipt of the letter, and his letter shows he understood the nature of the transfer, as it came out in evidence, and says:
Henry, J*
If that is the case, then the policy is all right as it is, except that Mr. Sheridan may be able to claim the insurance the policy must be transferred and made over to him by Mr. Thomson. I return you the policy, having made up another because the other did not look right. Please destroy the old one so soon as you shall be satisfied that the new one is similar. You will make Mr. Thomson sign his name in the interior of the policy opposite and return it to me with fifty cents for the transport. I shall then enter it in my books, and I'll send it to you immediately. This plan will obviate the necessity of making two policies, and will save expense. I believe that is all that is required. Please collect the amount of Mr. Thomson's note, and I'll send him his.
On the 22nd, Valois wrote Patterson:
I return Mr. Thomson's policy, which we have both signed. The sum to be made over to Mr. Thomas Sheridan is fifteen hundred and ten dollars, that is to say, the amount for which the buildings are insured.
On the 29th Patterson wrote again to Valois: I send you this day Mr. Thomson's policy transferred.
Thus, then, the old policy was cancelled in consequence of the correspondence just referred to, and a new one issued some time between the 8th and 16th of August. It is, however, dated the same as the previous one-the 25th of April, 1876.
The issuing of that second policy is therefore the act, not merely of the two agents, but that of the company itself by the signatures of its president and secretary, countersigned by " H. Patterson, general agent at Montreal," and under the corporate seal. The consent of the company to the transfer, dated 25th August, is signed by the secretary of the company.
The insured in the early part of that month, through SUPtiBE COURT OF CANADA.
the local agent, asked that " General Manager," if under the circumstances two policies were necessary ? (one for Thomson to cover the movables, the other to Sheridan to cover the buildings.)
He had paid for fall insurance on both, and wished to have no doubt of all I. being in order. Patterson makes out a new policy and tells him that by transferring the interest in the policy Henry, J. which covered the buildings it would be all right;
that Sheridan would then be insured as to the latter and Thomson as to the chattel property.
A loss as to both takes place. The company refused to pay either, and charge Thomson with false and fraudulent representations, and invoke in their attempt to evade payment, a clause in the policy providing that " agents of the company are not permitted to give the consent of the company to assignments of policies, or to waive any stipulation or condition contained therein."
The general agent was fully informed of everything before the issue of the second policy, and through his management and direction it was issued by the company, and intended by all parties to cover the buildings for Sheridan and the movables for Thomson.
respondent does not, however, claim by virtue of an assignment of the policy made by an agent or through any waiver since the policy issued. The provision of the policy just noticed does not therefore apply.
Conditions in policies are intended to prevent injustice to companies by false and fraudulent representations, but not to enable them to act dishonestly, dishonorably, or fraudulently towards others whose money they have received, and who are by the acts of their authorized agents lulled into security, to find subsequently the company endeavor to repudiate the acts of those who are held out by them, not as mere local, but general agents. If any wrong was in this case done to the company by their general agent withholding the information he had obtained before the second policy was issued, it certainly would be most unjust, and t contrary to all legal and equitable principles, to make the insured to suffer. It was the duty of those at the head office to know, and they must be presumed to have known, everything, before they signed the second Henry, J. policy, and if, instead of which, they relied on the general agent and accepted his suggestions, they virtually adopted his acts and must be hold bound by them. In all cases, except those to which I have referred as a condition of the policy, a general agent has implied authority to act for and bind his principal, so far as is necessary to the performance of his duties, and the principal is no less bound by his acts than those with whom on behalf of his principal he enters into agreements. His acts and knowledge are necessarily in such cases deemed to be the acts and knowlege of his principal.
Patterson was fully authorized as the general agent of the company to receive applications and represent them in every respect, at all events up to the issue of the policy. Notice to him in respect of the property and otherwise, is in law notice to the company. Local agents are considered to occupy a more subordinate position, and their powers are generally more limited. To bind a company for all the acts of local agents, often of little experience, in every hamlet or village, would be widely different from binding them for the acts and dealings of a general agent selected on account of his special business knowledge. The latter often act under powers of attorney and issue policies without consulting the head office, and in other cases policies are issued to them in blank fully executed by officers of the company, and requiring only to be filled up and countersigned by the agent. In the latter cases, also, policies are issued without consulting the head office. In such cases the agent is virtually the company. I presume, as the policy in this case is countersigned by Patterson, as such general manager, he had authority to issue policies in that way. I draw this conclusion from his letters to Valois, in which he does not speak of referring the matter to the officers of the company, but in such a I. way as to shew he alone could deal with the matter. To contend, therefore, that a party dealing with the Henry, J. company through the agent, should duplicate his negotiations by directly communicating with the head office would, in my opinion, be simply absurd.
The notice, then, to the general agent binds the company, and the policy being issued after that notice, no defence can be set up for any representation in the application.
That under the circumstances the company should endeavor to evade responsibility for the loss by pleading as they have done in this respect is, I think, not justifiable. To give legal effect to such pleading would be, I think, subversive of every legal principle. With a full knowledge of the transfer to the respondent the company not only admits Thomson's insurable interest, but with that same knowledge, suggesting and approving of the assignment of the interest in the policy which covered the buildings to sh/eridan, they would,
I think, be estopped from setting up against Sheridan the absence of the insurable interest in Thomson if he had none. They substantially say to Sheridan: " We know your relations with Thomson as to the property, and whether his right to insure was good or not, which question we waive, if you get an assigment of his interest in the buildings, we will consent to it as provided in the policy, and in case of loss will pay you."
The assignment was made and the company having consented to it, their compact was from that with
Sheridan, and they are estopped from setting up the absence of the insurable interest in Thomson.
Independently, however, of that position, I think
Thomson had all along an insurable interest. The transfer to Sheridan, although on its face absolute and final, was nevertheless agreed upon only as lien or mortgage, as by the declaration in writing of the latter, signed at s the same time, appears. The time for redemption as stated in the latter was three years, and possibly Sheri- J. dan might at the end of that time have refused to permit redemption by Thomson, but it is plain that the transfer was intended by the parties to it to be only a security for monies to be subsequently paid and advanced for Thomson, which Thomson was to repay with interest. It appears that up to the time of the issuing of the second policy, the same relations existed between Sheridan and Thomson, as it is shown that the one had been paying off the advances and the other receiving them. The understanding when the assignment was made, was that Sheridan was, in case of loss, to recover the insurance on the buildings as the assignee of Thomson, then acknowledged and understood to have the beneficial interest in the policy, and Sheridan, in accepting it, admitted the position.- He would therefore be held to receive the amount of the policy so assigned to the credit of Thomson in repayment of his advances. If by the receipt of direct payments by Sheridan, and the recovery of the amount of the policy so assigned to him, he should be paid in full, he would be held bound to reconvey to Thomson.
Thomson had therefore a good insurable interest as long as the relation I have stated remained understood and acknowledged by and between him and Sheridan, and the absolute nature of the transfer could not be insisted on by outside parties. That relation existed when the application was made and has since continued. I am of the opinion that had the policy not been assigned, Thomson could himself have recovered for the loss on the buildings.
There is one feature in the case to which it is desirable to refer.
Thomson became by lease the tenant of Sheridan, but the holding under it did not in my view in any way affect the nature of the transaction or the legal right of Thomson to redeem the property. The under- *rAn standing, or rather agreement, was that Thomson was . not to give up possession of the property, but to pay in the shape of rent $400 a year.
How that rent, if paid, Henry, J. would have been credited to him by Sheridan is not stated, but as I understand the agreement, he would be credited, as against the advances and interest and costs, any sums paid by him on a final, account between the parties.
That would be in accordance with the memorandum or declaration of trust signed by Sheridan, in which, on payment of' "all moneys, interests and costs, by him " advanced or to be advanced and paid under the terms and conditions of a deed of sale passed between us this day," he engaged
" to remit, return and re-sell unto him the property by me purchased under said deed."
The execution of the lease by which Thomson became for the time tenant to Sheridan did not affect the right of redemption of the former.
His position, as communicated to and con-. sidered by Patterson, was that of a mortgagor.
An objection to the whole action is taken under a clause of the policy which provides that "in case of loss the assured shall give immediate notice thereof to the company, stating the number of the policy and name of the agent, and shall deliver to the company as particular an account or statement of such loss or damage as the nature of the case will admit, and shall sign the same and verify by oath or affirmation,
The issue raised by the plea is not one applicable to the provision or condition of the policy just referred to. It alleges " that said Thomson has violated the terms and conditions contained in said policy, inasmuch as he has not delivered to said defendant a particular account or statement of the loss or damage which he alleges he suffered."
The plea therefore raises an issue not justifled by the condition.
He (Thomson) did not bind waL himself, as a condition precedent to his right to recover, .
to furnish in any event or under all circumstances any " particular account or statement " of loss, but only such'an one as the case admitted of, and the plea does not allege or aver that the case admitted of a more particular account.
He made an account, attested to in general terms, and, if objected to, the plea should have alleged that it was not as particular as the nature of the case admitted. Without such an allegation in the plea, no proof could be regularly admitted that a more particular account could have been given. It is not, however, contended that the plea applies to the buildings, or that, if it did, any more particular account was necessary. There are many cases in which anything more than a general estimate of loss could not be be given, and in others where only a partially particular account could be made out, and therefore in such cases the party can be called upon to furnish only such information as is in his power. The plea for the reasons stated, in my opinion, is no defence to the action. There are one or two minor points which I have not thought it necessary to refer to, further than to say that, in my judgment, they don't affect the right of the respondent to recover according to the judgment of the court appealed from to this court. I think the appeal should be dismissed and the judgment referred to affirmed with costs.
J., concurred.
.Appeal dismissed with costs.