American Ins. Co. v. Neiberger
| Decision Date | 31 October 1881 |
| Parties | AMERICAN INSURANCE COMPANY, Appellant, v. NEIBERGER. |
| Court | Missouri Supreme Court |
Appeal from Henry Circuit Court.--HON. F. P. WRIGHT, Judge.
REVERSED.
M. A. Fyke for appellant.
The note on its face is payable absolutely in four annual installments. It was incompetent to introduce any parol evidence to vary or control the written promise. Wright v. Moore, 9 Gray 337; Cunningham v. Wardwell, 12 Me. 466; Adams v. Wilson, 12 Metc. 138; Allen v. Furbish, 4 Gray 504; Isaacs v. Elkins, 11 Vt. 679; Henderson v. Thompson, 52 Ga. 149. The written application of defendant was for insurance for the term of five years. This application was signed at the time the note was given. No parol evidence can be received as to any agreement made prior to or contemporaneous with the execution of the note and application. Coats v. Swindle, 55 Mo. 31; Helmrichs v. Gehrke, 56 Mo. 79; Jones v. Shaw, 67 Mo. 668. The court erred in admitting evidence as to the usual contents of insurance policies. The application of defendant was for five years' insurance, and his note was given for the premium for four years, he having paid one installment in cash. And, again, if defendant relied on a custom it must be general and well known. There is no evidence of any such custom in this case.
Robt. C. McBeth for respondent.
Defendant having, by his agreement with the agent, reserved the right to cancel the policy at the end of a year, had a right to refuse to receive the policy issued because it did not so provide. Ocean Ins. Co. v. Carrington, 3 Conn. 357; May on Ins., § 52. Having rejected it, the consideration of the premium note failed. May on Ins., § 555; Boland v. Whitman, 33 Ind. 64. The testimony clearly shows that the terms of the policy as issued are extraordinary and unusual in not granting to insured the right to cancel, and the instructions of the court are supported by the testimony and were not prejudicial to the rights of ap pellant. The court did not err in admitting parol testimony as to the usual stipulations in such policies and as to the agreement made relative to the insurance at the time of executing the note and application; for it is only through such testimony that a court, in a case like this, can arrive at its true inwardness and be able to gauge and determine the rights of the parties.
On the 25th day of January, 1875, the plaintiff issued to the defendant a policy of insurance against loss by fire, for the period of five years from the 15th day of January, 1875, in pursuance of a written application previously made by him to an agent of the plaintiff, then in Henry county, where the property insured was situated. The defendant paid the premium for one year in cash, and gave his note for the premium for the remaining four years, payable in four annual installments of $12 each. This suit was instituted on February 3rd, 1877, to recover the two installments then due. It was admitted by the defendant that the plaintiff was duly authorized by the Insurance Department to do business in this State.
The defendant's testimony appears in the transcript in the following form: The installment note sued on was given to an agent of plaintiff for insurance on his farmhouse and barn and contents for five years. The agent came around soliciting insurance, and defendant and the agent made an agreement as to rates and time, and the agent made out an application for insurance which defendant signed and gave to the agent, and has not since seen it. The agent took this note and application, but did not at that time make out or deliver any policy of insurance. As defendant understood, the application and note were sent to the home office for the policy to be made out. In the course of time, shortly after the making of the application and giving the note, defendant received a policy by mail from the company at Chicago, which, when he read, he at once refused, and took it to Esq. Ellis to have it cancelled and sent back to the company. Defendant says he refused to accept the policy as made out by the company, and notified them of his refusal without any delay; that he refused the policy because it was not in accordance with his agreement with the agent; that it contained conditions and provisions which were not set out in the application nor made known by the agent, and when the policy came he refused to receive it because it was different from the agreement made with the agent; that defendant never paid the note nor any part of it, but always refused to do so for the reason that he regarded the policy as void; that he never regarded that he had any insurance, and that he refused to pay the note; that the agent promised him when the application was made, that he would get a policy containing a clause providing for cancellation by assured; that when the application was made he paid for one year's insurance in cash, and that as soon as he could, conveniently, after the arrival of the policy, and he had read it, he brought it down to Esq. Ellis to have it cancelled; that he wrote out and signed the cancellation and sent the policy to Chicago to the company, and they sent it back here again. Esq. Ellis sent the policy for affiant. This cancellation was before the expiration of the time for which cash had been paid for insurance. I think it was along about the 1st of April that the policy came from Chicago. The application was made about the middle of February, and the agent wanted to date it back to January. I think it was in May that I sent it back, about the 10th. I went to Ellis as he was an insurance agent. My understanding with the agent was that if I lost the amount named in the policy to be sent me, I would get it. He did not inform me that he would pay only two-thirds of the cash value of the property if lost, nor did he say anything to me about the right of the company to cancel the policy, and not give me the right to do so. Nor do I recollect that he said the policy would be void if the...
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