American Ins. Co. of Chicago v. Woodruff
| Decision Date | 18 April 1876 |
| Citation | 34 Mich. 6 |
| Court | Michigan Supreme Court |
| Parties | The American Insurance Company of Chicago, Illinois v. Oliver E. Woodruff |
Heard April 7, 1876
Error to Barry Circuit.
Judgment reversed, with costs, and a new trial granted.
James A. Sweezey, for plaintiff in error.
Charles G. Holbrook and William Burgher, for defendant in error.
Plaintiff sued defendant in Barry county upon a premium note, dated March 7th, 1872, and payable in annual installments. The defenses set up specially were, fraud in the procurement of the note, failure as a foreign corporation to comply with the insurance laws, and a special bargain that the policy might be surrendered, and that it was surrendered.
Defendant was allowed, against objection, to show that at the time the policy was executed he made a verbal agreement with plaintiff's agent that he might surrender the policy whenever he should see fit, and that upon surrendering the policy, the note should be delivered up, and no further premiums become due. And under this arrangement he showed that some time in the year 1874 (but whether any installment was in arrears then does not appear), "he surrendered his said policy by giving it over to one Brown, the agent of another insurance company," giving notice thereof to the agent of the plaintiff.
The bill of exceptions does not set forth the terms or conditions of the written policy. But the evidence showed no surrender to the company. In the absence of some explanation, a surrender could not very well be made out without dealing immediately and directly with the company or its agents. Notice cannot amount to a surrender (unless so agreed), without giving up the policy. Here the policy was given up to a stranger, and the agent was not bound to hunt him up to obtain it. It should have been given to the agent or transmitted so as to reach him or his principal.
There being no surrender, the validity of the agreement becomes of no importance, and need not be considered. In the somewhat meager and ambiguous state of the record, it would be useless to attempt it, where the question is not likely to arise again.
It is urged that if there was error in holding the policy surrendered, it becomes immaterial, by reason of a failure to prove a right to sue at all. It is claimed the plaintiff has failed to show any right to do business in Michigan, and cannot recover on a premium note for a Michigan policy.
Although the note bears no mention of the place where it was made,...
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