Born v. Home Ins. Co.

• Decision Date: 12 May 1903
• Citation: 94 N.W. 849,120 Iowa 299
• Parties: HENRY BORN v. THE HOME INSURANCE COMPANY, Appellant
• Court: Iowa Supreme Court

94 N.W. 849

120 Iowa 299

HENRY BORN v. THE HOME INSURANCE COMPANY, Appellant

Supreme Court of Iowa, Des Moines

May 12, 1903

Appeal from Cedar District Court.--HON. W. N. TREICHLER, Judge.

ACTION on a fire insurance policy. Trial to the court, and a judgment for the plaintiff, from which the defendant appeals.

Affirmed.

McVey McVey & Grham for appellant.

Smith & Smith for appellee.

OPINION

SHERWIN, J.

This is the second appeal in this case. The decision on the first appeal is reported in 110 Iowa 379, where a full statement of the facts will be found. We there held that sections 1729 and 1730 of McClain's Code had not been complied with, and that the notice sent to the plaintiff was not sufficient to suspend the policy. To avoid the effect of that holding, the defendant urges that the contract is an Illinois contract and that the statute in question does not apply thereto or control it. With this contention we cannot agree. It is, of course, elementary that a contract is never made until the minds of the parties meet, and they have agreed to exactly the same thing. When this has been done the place where the agreement was finally consummated becomes the place of the contract; and, unless it be shown that it was the intention of the parties that it should be performed at some other place, it will ordinarily be governed by the law of the place where it was executed. The plaintiff's written application for insurance was taken by the defendant's local agent. It asked for tornado as well as fire insurance, and the agreed premium for both was $ 66, for which the plaintiff executed and delivered his notes to the agent. Both were sent by the agent to the defendant's Western department at Chicago for approval. The application stipulated that no liability should attach until it was so approved. It was received and approved by the Chicago department in all respects, except as to the amount of the premium. This was raised $ 8, making the combined premium $ 74, instead of $ 66. The additional amount was charged to the local agent, and afterwards remitted by him to the defendant--just when does not appear. The policy was countersigned at Chicago on the 23d day of May, 1893, and afterwards delivered to the plaintiff; but whether by letter or by the agent who took the application does not certainly appear, although it does appear that the agent kept the policy in his safe for the plaintiff, and from this an inference may perhaps be drawn that it was delivered to the plaintiff by him. But however this may be, we do not deem it controlling. The real question is, where was the contract completed?

It was not in Chicago, when the application was received, because of the requirement that additional premuim be paid, and it could not have been completed until this requirement was assented to by the plaintiff. The $ 8 was charged to and remitted by the agent, and there is absolutely nothing indicating any correspondence by letter between the plaintiff and the defendant relative to this matter. The agent, then must have been the medium through whom information was conveyed to the plaintiff of the additional charge; and, if this be true, his assent thereto must have been given in this state, and the contract finally completed here. On this point we adopt the defendant's quotation from 1 May, on Insurance (4th Ed.) section 66: "It follows from the rule that the contract is completed when the proposals of the one party have been accepted by the other by some...