OPINION TEXT STARTS HERE
Appeal from Page circuit court.
This is an action upon an alleged contract of insurance. The cause was referred to J. M. Bartholomew, Esq., who found and reported the facts as follows: “(1) That the defendant is, and was, a corporation, as alleged in plaintiff's petition. (2) That on February 2, 1880, one N. B. Easton was the agent for defendant, with authority to take applications for insurance in the defendant company, and to receive and receipt for the premiums therefor, and forward such applications and premiums to the defendant company, and to receive from said company policies of insurance when issued, and deliver the same to the assured; and I find said agent had no other or further powers, real or apparent. (3) I find that on the second day of February, 1880, plaintiff executed and delivered to said Easton, as agent as aforesaid, an application for insurance in the defendant company on certain property in Shenandoah, in the amount of $500, for a term of six months, and that Exhibit A, attached to plaintiff's petition, is a true copy of such application. (4) That as payment for the insurance contemplated by said application, plaintiff gave to said Easton as such agent, and said Easton received, two dollars in goods and a promissory note for eight dollars; and that Exhibit C, attached to plaintiff's petition, is a true copy of such note, and that said agent gave plaintiff the receipt, a copy of which is attached to plaintiff's petition as Exhibit B. (5) That said application, note, and receipt were filled up from printed forms by said agent, Easton, or some one acting for him. (6) I do not find that said before-mentioned papers, or any of them, were executed in fulfillment of any pre-existing contract between plaintiff and any agent or agents of the defendant. (7) That the the property payment of two dollars was retained by said agent, Easton, and the application and note were by said agent forwarded to the defendant by mail, at Des Moines, Iowa, and that they were so forwarded by said agent before he had any knowledge of the loss hereinafter mentioned. (8) That on the night of February 3, 1880, the property mentioned and described in plaintiff's said application was, without fault on the part of the plaintiff, totally destroyed by fire, and plaintiff thereby suffered a loss in excess of $500. (9) That on the morning of February 5, 1880, plaintiff's said application and note were received by the defendant at Des Moines, Iowa, and on the same day said application was, by the secretary of defendant, marked as rejected and returned with said note to said agent, Easton. (10) That the reason assigned by said secretary at the time for rejecting said application, was that the defendant already had all the insurance in that row where said property was situated, that it cared to carry; and I find that such excuse was legitimate and proper, when measured by the rules of conservative and successful insurance; but I also find that defendant had been in the habit of carrying as large amounts as they would have had in the row where plaintiff's property was situated in other and equally hazardous rows. (11) The evidence does not show that at the time of such rejection said secretary, or any of the officers of defendant, had actual knowledge that the property described in the application had been destroyed by fire. (12) That shortly after the loss by fire defendant's agent, Easton, offered to return to plaintiff the said note and the payment of two dollars, but the same was refused by plaintiff. (13) That the insurance applied for was for six months only, being a short rate, and that the premium tendered was not an adequate compensation for carrying the risk; but I also find that at the time of the rejection of the application no objection was made as to time or rate. (14) That no policy of insurance was ever issued on plaintiff's said application by defendant. (15) That no proof of loss was forwarded to defendant by plaintiff within the time fixed in the policies issued by defendant. (16) That due proof of loss was subsequently made, to-wit, January 1, 1881, by plaintiff and forwarded to defendant, and payment absolutely and unconditionally refused by defendant, on the ground of an entire absence of legal liability on its part.” Upon these findings the referee recommended judgment against plaintiff for costs, which was rendered by the court. The plaintiff appeals.W. P. Ferguson, for appellant.
DAY, C. J.
1. The plaintiff insists that the application, note, and receipt set forth in the petition constituted a valid and binding contract of insurance pending the issuance of a policy, or until the...
