51 Ill. 342 (Ill. 1869), Aetna Ins. Co. v. Maguire

Citation:51 Ill. 342
Opinion Judge:Mr. Chief Justice Breese.
Attorney:Messrs. SLEEPER, WHITON & DURHAM, for the appellants. Messrs. GOOKINS & ROBERTS, for the appellees.
Court:Supreme Court of Illinois

Page 342

51 Ill. 342 (Ill. 1869)




Supreme Court of Illinois, Third Grand Division

September, 1869

Page 343

APPEAL from the Circuit Court of Cook county; the Hon. ERASTUS S. WILLIAMS, Judge, presiding.

The opinion states the case.

Judgment affirmed.

Messrs. SLEEPER, WHITON & DURHAM, for the appellants.

Messrs. GOOKINS & ROBERTS, for the appellees.


Mr. Chief Justice Breese.

Page 344

This was an action of assumpsit, brought to the Circuit Court of Cook county, by Terrence Maguire, Ludwig Wolf and William Barry, against the AEtna Insurance Company, upon a policy of insurance No. 320, and a verdict and judgment for the plaintiffs. An appeal was taken to this court at the September term, 1868, and the judgment reversed.

Upon the petition of the plaintiffs, and on the suggestion this court had not given sufficient consideration to some important facts in the case, a rehearing was ordered.

A rehearing has been had, and we will consider the case as one now before us for the first time.

The policy was written by James Sweet, an agent of defendants, at Nebraska City, on the 6th of September, 1865, and by him countersigned on that day.

By this policy, the defendants, in consideration of $ 175, insured the plaintiffs against loss or damage by fire, to the amount of $ 2,500 for one year, as follows: $ 1,000 on their two and one-half story frame distillery building and one story saw mill building attached, known as the Patterson Mills, occupied by the assured as a distillery and saw mill, and situated in the Rock Bluff precinct, in Cass county, Nebraska territory; $ 500 on boiler, engine, &c.; $ 500 on distillery fixtures, tubs, &c., and $ 500 on stock of liquors and grain, all contained in said buildings.

On the same day, an insurance, to the same amount, was effected in the Phoenix Insurance Company, of which Sweet was also the agent.

Eighteen conditions were annexed to the policy, as part thereof, and after stating what goods were not hazardous, what were hazardous, and what extra hazardous, to this latter clause is this: "The following are not to be be insured at any rate of premium, viz: brimstone works, distilleries, flax mills, gun powder, &c., steam saw mills, &c." Condition 5 of the policy, provides that, for any cause the company shall elect, it shall

Page 345

be optional with the company to cancel this policy, after notice given to the assured, or his representative, of their intention so to do, in which case the company will refund the premium for the unexpired term. There was another clause, to the effect that the policy should not be valid until countersigned by the duly authorized agent of the company at . It was duly countersigned by James Sweet, agent at Nebraska City.

On the 20th of November, 1865, an assignment of the interest of Maguire, Wolf and Barry, was endorsed on the policy to Terrence Maguire.

On the 29th of January, 1866, the premises were destroyed by fire. After the fire, Sweet, the agent, endorsed on the policy the assent of the company to the assignment, his assent bearing the same date as the assignment.

The first point made by appellants is, that Sweet, the agent, had no power to write this policy and bind the company. It is said he was a special agent, and exceeded his authority in taking a risk on a distillery and steam saw mill, risks specially forbidden by the very terms of the policy, and further, that the policy was subject to the approval of the general agent at Cincinnati; that it never received his approval, and therefore is not binding on the company.

Upon the first proposition, it is true, the policy enumerates distilleries and steam saw mills as property on which no risks will be taken; but what was understood and contemplated by the use of those terms? Most clearly, it seems to us, distilleries and saw mills in operation. This policy does not purport to be upon such, but upon the buildings, inactive, unused, not exposed to the hazards of such buildings in active operation. Should they be put in operation after the delivery of the...

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