Alexander v. Cont'l Ins. Co. of N.Y.

• Decision Date: 14 December 1886
• Citation: 67 Wis. 422,30 N.W. 727
• Parties: ALEXANDER v. CONTINENTAL INS. CO. OF NEW YORK.
• Court: Wisconsin Supreme Court

67 Wis. 422

30 N.W. 727

ALEXANDER

v.CONTINENTAL INS. CO. OF NEW YORK.

Supreme Court of Wisconsin.

December 14, 1886.

Appeal from circuit court, Portage county.O. H. Lamoreaux and E. L. & Paul Browne, for appellant, Alexander.

Chas. W. Felker, for respondent, Continental Ins. Co. of New York.

TAYLOR, J

This action was brought upon a fire insurance policy to recover for a loss arising during the time covered by the policy. The insurance was for five years. A cash premium of $11.75 was paid when the policy was issued, July 7, 1876, and a note given for the balance of the premium, to be paid in annual installments of $11.75, on the seventh of July, 1877, 1878, 1879, and 1880. The first installment was paid on the note, not on the day it became due, but on the fourth of October, 1877. The subsequent installments were not paid, and the loss took place May 7, 1881. The policy contains, among other things, the following conditions: “This company shall not be liable for any loss or damage under this policy, if default shall have been made in the payment of any installment or premiums due by the terms of the installment note. On payment by the assured, or assigns, of all installments of premiums due under this policy, and the installment note given thereon, the liability of this company under this policy shall again attach, provided written consent of the superintendent of the Western department be first obtained, and this policy be in force from and after such payment, unless this policy shall be void or inoperative for some other cause. But this company shall not be liable for any loss happening during the continuance of such default of payment, nor shall any such suspension or liability under this policy, on account of such default, have the effect of extending such liability beyond the period of its termination, as originally expressed in writing hereon. It is further provided that no attempt, by law or otherwise, to collect any note given for the cash premium, or any installment, or premium due upon any installment, shall be deemed a waiver of any of the conditions of this policy, or shall be deemed in any manner to revive this policy. But upon payment of the assured, or his assigns, of the full amount due upon such note, and costs, if any there be, this policy shall thereafter be in full force, unless the same shall be inoperative or void from some other cause than the non-payment of such note.”

The complaint set out the policy at length. It states the loss, and proof thereof; demand of payment, and refusal to pay; and, in regard to the payment of the premium, the following allegations are made: “And the plaintiff further alleges that at the time of said application for said policy, and the payment of said premium, and the execution of said premium note as aforesaid, the said John Gray, who was the authorized agent of said defendant company, executed, for and in behalf of said defendant, a receipt to said plaintiff for said application, cash premium, and said premium note, on the back of which receipt was a notice, stating that, fifteen days before any installment became due on said note, the said plaintiff would receive notice from said defendant of the fact, and the time when such installment so became due, which notice was read to said plaintiff by said agent, and by her relied on, and which this plaintiff alleges was given at the time of the execution of said note, and was and is one of the conditions on which said note was given; that said agent, Gray, further informed the said plaintiff that said notice of 15 days would surely be given to her by said defendant company, and which she relied on, and expected to be given her, as aforesaid; that the first installment of said note became due and payable on the first day of July, 1877, and that said defendant neglected to give her the said notice until on or about the fourth day of October thereafter, at which time such notice was so given by an authorized agent of said company, and said plaintiff paid said installment of eleven and 75-100 dollars to said agent on the said fourth day of October, 1877. The plaintiff further alleges that, at the time of the payment of said first installment, as aforesaid, the said defendant company, by its last aforesaid authorized agent, promised and agreed to and with the said plaintiff that the said defendant company would give her fifteen days' notice before the next, and each unpaid installment became due, and would call upon her personally to pay the same, which promise and agreement the said plaintiff relied upon, and expected said notice from said company, but that since said time the said note has never been presented to her for the payment of other installments, nor has she ever been requested by said defendant company, or any one in its behalf, to pay the other installments, or to send the same, by mail or otherwise, nor has the said plaintiff ever had or received any notice whatever that any installment on said note had become due since the first installment paid as above set forth; and the plaintiff alleges, on information and belief, that said defendant company purposely, and for its own advantage, withheld the said promised notice, well knowing that the said plaintiff relied on the same, in order to defeat a recovery on said policy in case of loss. The plaintiff further alleges that said premium note has never been surrendered up to her, but that at the time of said fire, and ever since, said note was and is outstanding; that she has, at all times, been ready and willing to pay the other installments of said note when the same became due, if the same had been presented to her by the owner or holder thereof, but the same was never presented to her for payment, or payment demanded of her; and she further avers that she had no knowledge of the whereabouts of said note, or in whose hands or possession it was or had been.”

The respondent company demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. The circuit court sustained the demurrer, and from the order...